Sugath Kulatunga

The obnoxious 13^th Amendment to the Constitution has surfaced again with the announcement by the President that 13A should be fully implemented, which also implies the remerger of the Northern and Eastern Provinces. His argument is that the provisions on police and land powers have been in the Constitution for the last 37 years and should be either implemented or taken off. The President should explain why this controversial issue is being raised at a time when the nation is desperately fighting an economic crisis. He did not take up this subject for over 3 decades, not even when he was Prime Minister. Is this off his own bat or a stipulation imposed by the IMF or the Western powers? India has been repeating this condition for over many years but would not be inclined to create political turmoil in Sri Lanka at this moment which could impact on the Tamil Community. It is opportune that policy makers visit not only the devolution of Police and Land powers but the vexed issue of the 13A as a whole.

History

Sri Lanka was divided into 9 Provinces on the recommendation of the Colebrook Commission of 1833 with the evil objective of dismantling the Kandyan Kingdom. But with experience in the administration of the country, and increase  of population and the demand for additional services at the periphery the Provinces were subdivided in stages into Districts. The British abandoned the Provinces because the Provincial administration was unwieldy and inefficient. The Present Provincial Council System hastily enforced by India has the same and more disadvantages. The previous Provincial Administration under the British was ably supervised by the Center. But the new animal is both a wild ass and a white elephant.

Up to the time of the enforcement of the 13th Amendment , the District was the first level of decentralized administration. At present, there are 25 Districts responsible for administrative and development activities at a local level”. Most of the major departments of the government were represented at the District level and the Government Agent as head of the District public service coordinated the functions of the Departments through the District Coordinating Committee(DCC). The important task of agriculture was supervised by the District Agricultural Committee(DAC) . The decentralized District Administration functioned smoothly and effectively through many natural disasters and civil turmoil.

13^th Amendment to the Constitution of Sri Lanka was forced on the political leadership of the country as a consequence of the Indo- Sri Lanka Accord of 1987. The bonafides of the Indian Government in the naked intervention in the domestic politics of Sri Lanka have been widely questioned. A solution to the issue of power sharing in Sri Lanka was not the primary objective of the Indian intervention. It was an unwarranted intrusion aimed at imposing Indian hegemony in South Asia. Most of the conditions, which were to prevent US influence in Sri Lanka, have no relevance today. India is now a most favored nation of the USA and a conniving member of the QUAD. The Accord itself became a dead letter when India failed to make the LTTE accept it. Most importantly, it was also not an agreement between the Tamil community and the government of Sri Lanka.

13A was not a demand of any community in Sri Lanka. It was rejected outright by the Cabinet. It was hatched by two ministers of the Rajiv Gandhi government without discussion with a broader sample of the Sri Lankan polity. The most recent progressive Constitution that of South Africa, which is considered a model, took two years of discussion and deliberation. Even Prabhakaran saw the duplicity of the proposal when he said on August 4, 1987, This agreement did not concern only the problems of the Tamils. This is primarily concerned with Indo-Sri Lankan relations. It also contains within itself the principles; the requirements for making Sri Lanka accede to India’s strategic sphere of influence. It works out a way for preventing the disruptionist and hostile foreign forces from gaining footholds in Sri Lanka. This is why the Indian government showed such an extraordinary keenness in concluding this agreement.”

A subsequent statement of former CJ, Sarath N Silva confirmed the problems of hastily grafting certain provisions in an alien Constitution into a totally different local situation. The 13th amendment is not a document that was formulated with much thought. It is one that was put together in haste to go with the Indo-Lanka accord. This amendment compiled by taking parts of the Indian constitution doesn’t suit Sri Lanka at all. As India is a large county they have to decentralize power. However, practically, it is not possible in our country. Especially, devolving police and land powers is not practical at all.”

On the statement of the former CJ on the size of India, It must be noted that the average population and the average geographical area of a State of India are more than 18 times the population and the physical area of a Province in Sri Lanka.

Advantages of The District as the focal point

Sri Lanka has had a tradition of local government from the days of King Pandukabhaya 2000 years ago. Most of the activities devolved on the Provinces were efficiently carried out at the District level prior to the 13th Amendment. To impose an intermediate level between the District and the Center is a violation of the principle of Subsidiarity and has led to a proliferation of political and bureaucratic positions.

A distinct advantage of District level decentralization is that issues typical to individual Districts in a Province can be addressed with special emphasis. For example, in the Eastern Province, the ethnic composition, level of development, and resources in the Batticaloa and Ampara, and Trincomalee Districts are different. Even in the Western Province where Colombo has a plethora of issues in urbanization the problems of the Kalutara District are very much more of rural nature. In the Northern Province, the distinction in economic, social, and cultural milieu between the Jaffna District and other Districts are striking.

Even from a power-sharing between communities is concerned a District system provides a marked advantage to minorities to participate in governance in Ampare, Trincomalee, Batticaloa, Nuwaraeliya and the 5 Districts of the Northern Province which is in nine out of 25 Districts of the country or in 36% of the Districts.

The imposition of an echelon above the District is a gross violation of the principles of subsidiarity and proximity. The shift of administration from the Province to the District was a milestone in the progressive decentralization of power from the Center closer to the citizen. The Districts were well endowed with the required technical capacity. There was no economic efficiency gained from reverting to the Province.

Sri Lanka had made several attempts to establish District Councils. In 1968 White Paper presented by Minister for Local Government, Mr.M.Thiruchelvam was withdrawn due to the violent protest by the opposition. In 1979 a commission with the participation of Tamil intellectuals like A. J. Wilson and  Neelan Tiruchelvam made proposals on District Development Councils. It was the only set of proposals accepted by the Tamil political parties. Tragically, at the DDC elections in the Jaffna District in 1980 the election process was deliberately disrupted by the UNP the governig party which made the Tamil parties disillusioned with the DDC process.

Subsidiarity principle

In the devolution/decentralization of power the universally accepted principle is that of subsidiarity. This is effectively practiced in the European Union and clearly spelled out in the UNITED NATIONS CENTRE FOR HUMAN SETTLEMENTS (Habitat) in its Policy Statement titled TOWARDS A WORLD CHARTER OF LOCAL SELF-GOVERNMENT as the basis of the Charter should reside in the principles of subsidiarity and proximity, whereby decisions should be taken at the level closest to the citizens (municipality or town) and that only those tasks which the local level cannot effectively carry out alone should be referred to higher levels. In accordance with the principle of subsidiarity, public responsibilities shall generally be exercised by those authorities which are closest to the citizen. In the same spirit, any allocation of responsibility to another authority must be based only on the requirements of superior technical or economic efficiency.”

Governance structures should be citizen-centered and the commonality of interest of a community should be a prime consideration in deciding on the territory of a unit of governance. The District is the more homogenous unit with a higher commonality of interest of the inhabitants. Agro-climatic factors, resource endowments, and ethnic compositions are generally less varied within a District than in a larger unit of the Province. Even in the Western Province, in the Districts of Gampaha and Kalutara, the ethnic composition, level of industrialization, agricultural patterns and the overall level of infrastructure development are different. Gampaha is in the coconut triangle and is a fast-industrializing District with a good road network and fast developing infrastructure with an Investment Promotion Zone and an international airport. The economy of the Kalutara District is based mainly on agriculture with smallholder rubber making a substantial contribution to income and employment generation.

The smaller unit also favors direct democracy, higher participation of citizens in decision making, and good governance. Economic activities and social relationships bind the inhabitants of the District. Their problems are similar. The District center is the hub of road networks and communication facilities. In many cases, Districts have had a closer relationship with adjoining districts of different Provinces. Batticaloa and Polonnaruwa and Trincomalee and Anuradhapura are good examples. It does not make sense for a citizen in Ampara to be governed from a provincial capital in Trincomalee, or a Hambantota farmer to be governed by an authority located in Galle when the task could be performed better in the same District with less cost and inconvenience to the citizen.

Although the country has achieved reasonable targets in most millennium development goals, widespread disparities exist at District levels. It is only by a District-based strategy that such disparities can be addressed effectively and without delay. There is more scope for the development of harmonious relationships and the integration of the different communities within a District than in a larger space of a Province.

At present, there are two indeterminate positions held by India and Sri Lanka on the Provincial Councils. The Indian position articulated by the Indian Minister Jaishankar and the Indian representative in the UNHRC is that the 13th Amendment to the constitution should be implemented fully. This means that in addition to the Police and Land Powers given in full to the Provincial Councils, the Northern and Eastern Province should be amalgamated. This condition of India is to create a land area and a population that could demand self-rule and also has the strategic port of Trincomalee under its control. It is ironic that India is calling for more power to the Provinces while withdrawing the application of Article 370 of the Constitution of India to Kashmir which allowed the state a certain amount of autonomy. If India does not have ulterior motives and is concerned about the Tamil people enjoying greater opportunities for them to participate effectively in the decision-making process relating to administrative and development activities at a local level” India should ensure that the proposal for District Councils are accepted. This will be going much beyond the 13th Amendment in power sharing.

Sri Lanka has a mixed population and that is its greatest strength. The character and priorities of districts varied and when clumped together in one Province the weaker districts get submerged. There is a marked difference between Galle and Hambantota or between Jaffna and Mannar. Certainly, there is no commonality between Jaffna and Amparai or Trincomalee. With district self-government, each district will get parity with the others. The units being small will also make them manageable for efficient administration. Management is one of the major deficits in our present system. Communication, mobility and decision making would be considerably faster than in the framework of cumbersome provincial bureaucracies.

The smaller units would additionally enable linguistic, cultural and economic uniformity within their jurisdiction. Development and progress too could be monitored, evaluated and implemented much faster. The commitment and self-reliance of people within the unit would tend to be greater than within a large provincial unit.

Failure of Provincial Councils

The  Conversation with the Village” Gama Samaga Pilisandara’program of President Gotabaya revealed the utter failure of the Provincial Councils to address the existential problems faced by the people in underprivileged villages. All problems that were presented to the President at these meetings were problems within the ambit of the devolved powers of the Provincial Councils. If Provincial Councils were the solution to better serve the people, the President’s meetings with the people clearly demonstrated that it was a not so. Concerned citizens are surprised why such a proven failed structure is to be encumbered on the people at an enormous cost.

National Security

 In any arrangement for power-sharing, which disregards the overarching concerns of sovereignty and territorial integrity of the country is an invitation to disaster. Devolution of powers to the District rather than to a Province is less likely to become a threat to the territorial integrity and national security of Sri Lanka. It is relevant to mention that even India has expressed fears of the notion of Eelam as a threat to the sovereignty and territorial integrity of India. A relevant excerpt of the Gazette Notice of the Indian Government declaring the LTTE as an unlawful association is produced as follows:

MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 14th of May 2019 S.O. 1730(E).

WHEREAS the Liberation Tigers of Tamil Eelam (hereinafter referred to as the LTTE), is an association based in Sri Lanka but having its supporters, sympathizers and agents in the territory of India.

AND WHEREAS the LTTE’s objective for a separate homeland (Tamil Eelam) for all Tamils threatens the sovereignty and territorial integrity of India and amounts to cession and secession of a part of the territory of India from the Union and thus falls within the ambit of unlawful activities.

AND WHEREAS the LTTE, even after its military defeat in May 2009 in Sri Lanka, has not abandoned the concept of ‘Eelam’ and has been clandestinely working towards the ‘Eelam’ cause by undertaking fund raising and propaganda activities and the remnant LTTE leaders or cadres have also initiated efforts to regroup the scattered activists and resurrect the outfit locally and internationally”.

It is appalling that when India which nurtured the LTTE considers the LTTE to be a secessionist threat, Sri Lanka is attempting to give the separatist a base to continue their subversive activities. In the current context of an ISIS threat, a separate Eastern Province could become a cradle of Islamic extremism.In this context Presidents proposal to give Police and Land powers to the Provincial Councils would be like letting the fox into the hen house. In countries with histories of communal tensions the center retains such key powers in the national interest.

In South Africa there is only one National Commissioner of Police. The Constitution stipulates at Article 207. (1) The President as head of the national executive must appoint a woman or a man as the National Commissioner of the police service, to control and manage the police service.

(2) The National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing.

(3) The National Commissioner, with the concurrence of the provincial executive, must appoint a woman or a man as the provincial commissioner for that province, but if the National Commissioner and the provincial executive are unable to agree on the appointment, the Cabinet member responsible for policing must mediate between the parties.

(4) The provincial commissioners are responsible for policing in their respective provinces ­ 1) as prescribed by national legislation; and subject to the power of the National Commissioner to exercise control over and manage the police service in terms of subsection (2) above.

 The transfer of Police powers to the Provinces would end up in Chief Ministers making the police force their private armies. Even today the nexus between provincial politicians and the drug, kasippu and organized crime mafia is well known. Police functions should never be politicised.

The transfer of land powers to provinces is disastrous. Even without land powers the subterfuges employed to abuse land alienation rules by interested parties in Districts like Trincomalee, including illegal encroachment and even setting fire to the land office are on record. In the Northern Province where Thesawalami law prevails the poor sections Of the community and the underprivileged castes would be discriminated against.

Malay majority in Malaysia is 69% and Malay Reserve Land can only be owned and controlled by Malays and it is impossible to be legally released to non-Malays. All Malays are Muslims.

It is high time that in the national interest the government and the opposition revisit this alien enforced 13A and establish District Councils with increase decentralized power with the restriction that districts cannot merge with other districts.

Paul Harris, International journalist and specialist contributor to Jane’s Intelligence in a speech on April 23, 2002 referred to the MOU between the Government and the LTTE and the aftermath as the The Greatest Giveaway in History.” I only hope that the President’s proposal will not turn out to be as bad.

 Sugath Kulatunga