13-A a threat to Sri Lanka’s territorial integrity
Under the topic titled “THE NEED FOR DEVOLUTION OF POWER” the recommendation of the Lessons Learnt and Reconciliation Commission (LLRC) was:
“In addressing the question of devolution two matters require the attention of the government. Firstly, empowering the local government institutions to ensure greater peoples’ participation at the grass roots level. Secondly, it is also imperative that the lessons learnt from the shortcomings in the functioning of the provincial councils system be taken into account in devising an appropriate system of devolution that addresses the needs of the people. It should at the same time provide for safeguarding the territorial integrity and unity of Sri Lanka whilst fostering its rich diversity”(9.231d).
The demand both nationally and internationally is for Sri Lanka to implement the 13th Amendment in its current or suitably modified form to meet the recommendations stated above. This article attempts to draw attention to the fact that provisions of the 13th Amendment with the Province as the unit to which powers are devolved, has the following consequences:
1. A threat to the territorial integrity of Sri Lanka.
2. A fetter to “empowering local government institutions and ensure greater peoples’ participation at the grass roots levels” called for by the LLRC.
DEVOLUTION to PROVINCES: A THREAT to TERRITORIAL INTEGRITY
Secessionist tendencies in the UK by Scotland, in Spain by Catalonia, in Italy by the Piedmont, in Canada by Quebec, in Rumania by Transylvania, and in other parts of the world, demonstrate the unintended consequences of devolving political power to large territorial units. In Sri Lanka too the Tamil community resolved in 1976 to create a separate state comprising the Northern and Eastern Provinces and fought a protracted armed conflict for nearly 30 years in the hope of achieving that goal. According to Charles King, Professor of International Affairs and Government at Georgetown University and Fellow at the Woodrow Wilson International Center for Scholars, such secessionist tendencies have more to do with nationalist leaders translating their aspirations into political action by exploiting devolved powers to recognized and defined institutions such as local governing Councils, administrative structures, power to enforce law and order within defined regions rather than ethnicity, grievances or perceived oppression (Foreign Affairs Journal, Sept/Oct. 2012).
It is the combination of the physical size of the unit and powers assigned to it that is the impetus to secession. The larger the unit, the greater is the scope for devolved powers. Devolved powers in combination with the “defined institutions” assigned to it are what would be exploited by the nationalist elites to realize goals. For instance, the territorial sizes of units such as Scotland, Catalonia and Piedmont or Quebec that are today seeking secession are substantial. While some regions seek secession by consent, others such as the regional Parliament of Catalonia has voted on September 23, 2012 to hold a referendum to determine whether or not to seek independence from the rest of Spain, against objections from Spain’s federal government. As with these instances, in Sri Lanka too, the Province as the devolved unit poses a threat to the territorial integrity of Sri Lanka, because of its size relative to the rest of the country and for the possibility to unilaterally opt for determinations emboldened by international happenings. Denying Police and Land powers to provinces would not guarantee territorial integrity. A more meaningful measure would be to make the unit small enough to assure territorial integrity.
For instance, the Northern Province has a land area of 8686 sq.km. and an extensive coastline. These would be considered sufficient attributes for its regional elites to aim for unilateral secession; a warning already issued by the leader of the Tamil National Alliance (TNA). The lesson from Kosovo is that if even a land locked country with an area of 10587 sq. km that is marginally bigger than the Northern Province could gain independence, it could very well happen with the Northern Province. The precedent created by Kosovo should serve as a warning to Sri Lanka. The collective effect of land size and Tamil dominance in the Northern Province could be presented by a TNA led Northern Provincial Council as a region with the required mix to make unilateral determinations such as self-determination, with no concern for its effect on other regions and communities. This would be the case as long as the Province is the unit. On the other hand, a unit that is smaller than a Province would safeguard territorial integrity while accommodating diversity.
PROVISIONS of 13A: A FETTER to GOVERNANCE
The LLRC recommends empowering Local Governments and even smaller entities such as the village. This would involve some of the powers currently devolved to the Provinces being conferred on the Local authorities that come under the Provincial Council List of the 13th Amendment. However, the process of empowering Local authorities has to be undertaken with the consent of ALL Provincial Councils. If one or more Councils oppose such efforts, the Bill needs to be passed with a 2/3 majority in Parliament, and if such a majority is not possible, provisions of the Bill would apply ONLY to those Provinces that give their consent despite non-approval by the rest.
The recent experience with the Divi Naguma Bill attests to the complexities involved in the entrenched provisions of the 13th Amendment. If a Northern Provincial Council led by the TNA opposes the Divi Naguma Bill, a stand already taken by them, it would either require the approval by a 2/3 of the Parliament, or the Bill would apply only to the Provincial Councils that gave their consent, and not to Provinces that oppose. Similar hurdles await efforts to empower Local authorities since it would entail diluting powers constitutionally conferred on Provincial Councils. If progress is to be made and peripheral units closer to the grass roots are to be empowered as recommended by the LLRC, the 13th Amendment needs to be repealed.
REPEALING THE 13th Amendment
As long as the 13th Amendment remains a part of Sri Lanka’s Constitution, opportunities would be available for interested regional elites to unilaterally seek self-determinations citing international precedents. It is the potential for unilateral action that makes current provisions unjust and therefore unacceptable. A serious lack of foresight is the right of Provincial Councils to resort to unilateral action under provisions of Sri Lanka’s Provincial Council Act No. 42 of 1987. This Act limits the decision for two or more Provinces to merge to the Councils concerned based on a poll. The rest of the Provincial Councils are excluded from the decision making processes. This violates equality before the Law because it places the remaining Provinces at a disadvantage by not having the opportunity to protect possible violations to their interests.
It is important to note that the injustice of unilateral determinations was recognized by the framers of the US Constitution as far back as 1787. This led them to provide in Article 4 Section 3 of the US Constitution, the following:
“…no new States shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, without the Consent of the Legislatures of the States concerned as well as of the Congress”.
This underscores the principled concept that unilateral action on the part of a State or States is unacceptable. The framers in their wisdom realized the injustice of limiting decisions that affect the whole of the United States to the determinations ONLY to the States concerned. The constitutional requirement to have the approval of the US Congress recognizes that issues relating to territorial integrity should not be undertaken unilaterally but by the nation as a whole. This safeguard is not available in the Provincial Council Act, and is therefore a serious injustice to the Sri Lankan nation.
It is by repealing the 13th Amendment that this injustice can be rectified. One approach to do so would be to resort to provisions under Article 154G (2). This would require a Bill for the repeal of the 13th Amendment to be referred to every Provincial Council for expression of their views. If one or more Councils do not agree, Parliament could still pass it with a 2/3 majority. While this approach would be constitutionally legitimate it would be at the cost of considerable political capital. A more effective approach would be to seek the will of the People and to conduct a National Referendum as to acceptance or rejection of the 13th Amendment under provisions of Article 86 of the Sri Lankan Constitution.
There is apprehension in some quarters that if the Northern Province together with the Eastern Province vote for acceptance of 13A, while the other Provinces vote to repeal it, the outcome would not have legitimacy as a national determination. Such apprehensions are unwarranted since the decision would be based on the NATIONAL VOTE. This would be no different to electing the President of Sri Lanka, wherein what is material is the national determination, and not how segments or communities vote. Some communities may not vote for a particular candidate. This does not rob the legitimacy of the national outcome. What matters is which candidate received the majority of votes. Similarly, a National Referendum would have all the legitimacy Sri Lanka needs to determine whether or not the 13th Amendment should or should not be repealed.
CONCLUSIONS
Sri Lanka needs to be alert to secessionist developments in countries such as UK. with Scotland, Spain with Catalan, Canada with Quebec as well as other parts of the world, and prepare for similar developments in Sri Lanka. These developments are inevitably due to sizeable territorial entities being conferred with devolved political power. This potential for secession exists in Sri Lanka as long as the devolved unit is the Province. Therefore, if Sri Lanka’s territorial integrity is to be safeguarded as recommended by the LLRC, the Province as the devolved unit needs to be replaced with one that is smaller. As for devolved powers under the 13th Amendment, recent experiences (e.g. Divi Naguma Bill), demonstrate that the consent of all the Provinces is needed to empower Local Government and grass roots level units. The procedures involved could prove to be a fetter thereby restricting opportunities to improve governance. The minimum that the Government could do is to revise the Provincial Council Act No. 42 to ensure that for any two or more Provinces to merge it should require not only a poll to be conducted in the Provinces concerned (as currently provided), but also approval of the entire Parliament be sought in order to safeguard the interests of the whole nation, similar to the safeguards in the US Constitution.
By Neville Ladduwahetty
