Understanding the Thirteenth Amendment - II

By N. Sathiya Moorthy

(April 07, Chennai, Sri Lanka Guardian)
In matters pertaining to the repeal of, or amendment to the Provincial Council List under the Ninth Schedule, Art 154 G-3 insists that all the Provincial Council needed to vote in the matter. The alternative would be for Parliament to vote on the same by two-thirds majority (Art 82). Under Article 154 G 5-a, Parliament should consult the Provincial Councils for amending the Concurrent List. The succeeding clause, Art 154 G 5-b also empowers the Provincial Council to legislate on matters covered by the Concurrent List, though in consultation with Parliament.

That is how the Amendment needs to be read, by favouring the Provincial Councils unless there is a specific requirement, otherwise. Yet, there seems to be some purported confusion pertaining to ‘Delegation of Legislative Powers’ of and by Parliament under Article 76 of the Second Republican Constitution. They are both possible and inevitable – and could have been rectified if only the Tamil Provinces had accepted the India-Sri Lanka Agreement and adopted the Thirteenth Amendment, and worked with and on them.

Much has been made of the President’s powers to give directions to the Governors on the maintenance of essential supplies and ensuring the security of the country, from external aggression and internal armed struggle – as different from political protests (Art 154 J-1). Typical of the ‘Indian model’, Art 154 K and 154 I empower the President to impose Central rule in the Provinces and also dissolve the Provincial Councils where he is convinced that “a situation has arisen in which the administration of the Province cannot be run in accordance with the provisions of the Constitution”.

What however stands out in this context is the Proviso to the Article which clarifies that the President cannot, under this Article, “assume powers vested in courts”. This clearly implies that the instrument of ‘judicial review’ of the presidential take-over of the administration in the Provinces is both feasible and desirable.

These are all provisions pertaining to Provincial Councils and provincial administrations independent of ethnicity – though in the immediate context it related mostly to the Tamils and the Tamil-majority North and the East. Where however the ‘ethnic equality’ as different from ‘equity’ stands out, Article 154 R under the Thirteenth Amendment regulates the membership of the Finance Commission, instituted for distributing the funds at the disposal of the Sri Lankan State among the Centre and the Provincial Governments in an equitable manner, as in other democracies, starting with the Indian neighbour.

Possibly for the first-time ever in democratic, or not-so democratic history, the Thirteenth Amendment stipulates that “there shall be three representatives from each of the three major communities” on the Finance Commission, along with the Governor of the Central Bank and the Secretary of Treasury. Academic expectations have been prescribed but then it is ethnicity that is the underlying factor for such appointments.

The problem with the Thirteenth Amendment has more to do with implementation, not with legislation. Even today, a full year after the Government of President Rajapaksa had promised full implementation of the Thirteenth Amendment in the de-merged Eastern Province, where there is an elected Provincial Council and Tamil-speaking Chief Minister wide gaps remain between purported intentions and prescribed enforcement.

Debates and discourses remain on devolving Thirteenth Amendment powers to the Provinces, particularly in sensitive subjects such as Police and Land. Interpretations remain, but then the intention of the Sri Lankan State, as enshrined in the Thirteenth Amendment, and revived and reiterated full 20 years later by the Rajapaksa Government last year, cannot be allowed to remain only as pious intentions. Implementation does not require Herculean efforts – not if President Rajapaksa puts his heart to it.

If President Rajapaksa cannot do it here and, none else in his place in the future may be able to do it. With that would be linked the credibility of the Sri Lankan State on the one hand, and the sincerity of the Sinhala polity on the other – and not just in the eyes of the Indian neighbour. Much water has flowed on the ‘merger issue’, as well. If ‘de-merger’ has become a political and constitutional reality, it owes mainly to the unwillingness of the moderate Tamil polity and community to stand up to the military might and terror intent of the LTTE, all along. The ‘merger referendum’ in the East should have been seen as Province-centred take-off from and an improvement upon the existing constitutional provision for nation-wide referendum on larger issues. The LTTE was not impressed by the provision. It was interested only in war – and war is what they have got. -Concluded
-Sri Lanka Guardian