| by N. SathiyaMoorthy

( October 21, 2012, Chennai, Sri Lanka Guardian) Defence Secretary Gotabaya Rajapaksa’s media interview on his wanting the Thirteenth Amendment scrapped may have set the cat among the pigeons on the larger issue of ensuring ethnic peace. It has the potential not only to revive the national discourse on the ‘national problem’ almost from the scratch but also to put off the Tamil National Alliance (TNA) from the Parliament Select Committee (PSC). Gota’s brother, the President, Mahinda Rajapaksa, has been hard-selling the PSC to the TNA for long without much success. Gota’s prescription also goes against the letter and spirit of the LLRC Report, to which the Government has committed itself before the international community. It also comes ahead of the Universal Periodic Review (UPR) of Sri Lanka’s human rights record at the UNHRC, Geneva, where the current exposition could flag renewed concerns.

Before leaving for New Delhi recently, during their stay in the Indian capital and on return home, TNA leaders linked their PSC participation to commitment from President Rajapaksa that the Tamil community would not be cheated one more time. It implies a minor shift in the TNA position – from a pre-PSC deal to going to the PSC with an open mind. It is not an open-ended affair, however, the TNA seems to be implying. Yet, even the TNA seems unclear about the ‘minimum threshold’ and the ‘minimum guarantee’ that could encourage them to go to the PSC.  But Gota R kind of declarations would not inspire confidence in them, if winning over their confidence still mattered to the Government and President Rajapaksa.

If the LTTE and the TNA had something in common, it was in their opposition/reservations to 13-A. The former did not want it but the latter wanted it strengthened, instead. Ultimately, it is not about 13-A. It is not even about the 13-Plus that President Rajapaksa (as the one who had coined the phraseology) may have had in mind.  The TNA has had its version for 13-plus. It is also not about 13-minus, as some Government parties have f;aged from time to time. Nor is it about 13-plus, minus, 13-minus, plus, or whatever – not any more. It is instead about larger issues of power-devolution and political solution, two sides of the same coin. The world is not satisfied with the military elimination of the LTTE. It sees the LTTE’s exit only as a means to an end, not an end in itself. It is not satisfied with the development discourse substituting devolution discussions. Again, the global community sees development only as a process of devolution, at best, not devolution, per se.

Instead, the global perception flowing from the Government’s 13-A promise was/is about the ‘sovereignty’ of the Sri Lankan State – but not in the ways often understood, or misunderstood. In context, it is about the ‘sovereign political guarantee’ that the Sri Lankan State, the Government and Government leaders, starting with the President, had given such other States, their Governments and Heads of Government while bringing them together to fight Sri Lanka’s war on LTTE terror. Sri Lanka achieved the impossible by bringing India, Pakistan, China, the US and Russia, among others, to fight its political and military battles alongside in ways that might have been thought impossible.

Post-war, some nations did veto anti-Colombo global diktats in the UN and Geneva, but on accountability issues. Nearer home in Colombo, they too underlined the need for a political solution. Nations do not like others going back on their commitments, independent of the issues or the timing (unless at times they are at the receiving end). The way the global system operates, the Geneva process showed the ways of the international community circumventing a UN veto, and yet be every bit legit. Colombo may not have thought about it when it still stuck to claims of ‘zero-casualty war’ when the world was ready to accept a lesser figure than came to be flagged later.

The TNA’s confabulations with Chinese Embassy officials on return from India needs to be seen in context. It need not be a reflection on Chinese regional interest in South Asia, which alone has caught the imagination of political Colombo. It is a greater reflection on growing Chinese engagement with various stake-holders in Sri Lanka. It was so earlier too, when China invitation for the TNA to visit Beijing, and their officials in Colombo meeting with the TNA at least once before the Geneva vote. China has also expressed itself on the ethnic issue. It differs with the rest of the world only on the rightful Sri Lankan demand against global diktats. Otherwise, Beijing is also learning that for ready acceptance as an acknowledged super-power, it has to follow rules, which as Colombo rightly points out are still being set by the West.

Like Sri Lanka, other nations fighting terrorism too have sought and obtained such cooperation, in their turn. There have however been exceptions of access to cooperate from third countries. India’s experience with Pakistan, and after a point and by extension, the US too, stands out. Yet, if Sri Lanka sought and obtained the kind of political, diplomatic and military cooperation when it sought it, that owed to two factors. One, despite the Diaspora constituency that was out in the open in large numbers during the closing weeks of ‘Eelam War IV’, Europe and the Americas stood by Colombo, when asked. Two, the Indian neighbour not only set aside the ‘Tamil Nadu concerns’ for the time being. New Delhi also talked for Colombo, in and with global capitals.

The war was one, as much by quiet but effective friendly diplomacy as by the dedication of the Sri Lankan armed forces and the political commitment of President Rajapaksa. Neither was ever deterred by battle front reverses, as their predecessors. The collective action of the comity of nations on Sri Lanka’s side came with a price-tag. It had nothing to do with the ‘China factor’ in the case of India and/or the US, or even of the ‘accountability issues’ as a few other nations began flagging, both during the end-game of the war, but more so afterward. If nothing else, Europe’s concerns were not centred on the ‘China factor’ as some in Colombo may have attributed to India and the US. It was all about the Sri Lankan Government doing justice by the Tamil minorities once the LTTE had been eliminated.

In all this, the TNA came as a package as much a part of post-war peace-building as it might have been a part of the LTTE’s political propaganda machinery during the war years. President Rajapaksa began sending out feelers to the TNA for a negotiated settlement even when the war was still raging and the LTTE was still around. He continued with the process – and did not dis-engage the TNA, post-war, as if an offer of a negotiated settlement was only a part of the war strategy, and not post-war peace-building. Since the PSC concept evolved, the Government to date has stood by the open invitation for the TNA to join the process.

For all intents and purposes, 13-A is not just another amendment to the Sri Lankan Constitution.. That it was an India-initiated proposal is incidental to the proceedings. Whether or not it is scrapped, now or later, over the past decades, the title has been used to argue the good and bad of power-devolution with Province as the unit — based on which side of the Sri Lankan ethnic divide. Any call for scrapping 13-A implies an end to power-devolution of the kind that is at the core of the PSC process, as the Government has made out over the past months. By extension, it implies an end to the invitation for the TNA to join the PSC. It is unclear if that is the intention of the Government and the President.

The 13-A row, if it persists, could get a serious mention at the UPR. So could the judicial processes, which at one time had cleared it for implementation. If today, the highest judiciary in the land commits certain legislation for clearance by the Provincial Councils before Parliament could consider them for passage, it is all in the letter and spirit of the Constitution. It is not now, at no point in time has the judiciary been the favourite of Governments in any democracy. They have been the favourite of the people, instead, from time to time. Every time other constitutional institutions are found to be weak or unwilling or both, such others as the judiciary, the Election Commission, the Government auditors have been seen to have risen to the occasion, as if to fill a void. Though unlisted and unsung, it has been the functional beauty of democracy all the same.

The converse is a ‘committed judiciary’. It comes with consequences not just for the nation but for its rulers, too. In neighbouring India, the world’s largest democracy, Prime Minister Indira Gandhi paid the price as calls for a ‘committed judiciary’ led to a permissive politico-administrative culture. The latter in turn caused the imposition of internal emergency in the Seventies, and subsequent defeat of Indira Gandhi when she went to the people. With that commenced the decimation of her Congress’ image as the unchallenged political party in the country. Today, when the nation’s polity is at sixes and sevens, the judiciary and the CAG have been charting out the nation through the troubled waters of the times. The Election Commission had proved earlier that it was always possible to discipline the system from within!

An impression is being sought to be created in contemporary Sri Lanka that the independence of the Judiciary is under threat from the Government of the day. It has been the case from time to time, not just now. It has been the case elsewhere too, wherever democracy is in place. In a weird way, it is an attestation that democracy is in place. The answer or the alternative, as the case may be, is to have more democracy, not less of it. In the past when the Judiciary ruled differently on issues of their concern, the Tamils would read meanings into the de-merger of the North and the East, and the legality of the removal of the ‘Salsbury Protection’ clause from the First Republican Constitution. Today, the shoe seems to be on the wrong foot.

The TNA, if it has further reservations to go to the PSC, can go to the courts. They have already done so on the Governor’s powers, or lack of it, for acting for the non-existent Provincial Council in the North. There are other issues that they can agitate in the Sri Lankan courts, not the streets, New Delhi or Washington, the UN or Geneva. It is possibly open to any member in any Provincial Council to move the courts for conferring or restoring the constitutional powers of the elected body on matters of Police and Land, Education and Health, Roads and what not, purportedly taken away by the Centre. It displays a mind-set that no PC member from any party has moved the courts thus far, as would have been the case in other democracies.

Whether giving more — or taking (back) more — the Government and/or the rest cannot escape acknowledging the pre-eminence of 13-A in the present scheme. There are provisions and provisos under 13-A that none has exploited under the constitutional jurisprudence of contemporary Sri Lanka. In doing so, however, they would also need to acknowledge the supremacy of Parliament in matters of making and scrapping laws, including 13-A. In the process, the PSC could still become more relevant to the TNA, for instance, than is acknowledged to be. But then, it is also where the party and the people it represent in Sri Lanka would need some roadmap on what is intended and what they need to be content with!

(The writer is Director & Senior Research Fellow at the Chennai Chapter of the Observer Research Foundation, the Indian public policy think-tank, headquartered in New Delhi. email: sathiyam54@hotmail.com)