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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2613

The 13th Amendment and Its Vision of the State

Professor Laksiri Fernando - University of Colombo

Introduction

Many countries in transition from colonialism to independence, underdevelopment to development or from conflict to peace have envisaged or rather compelled to envisage different visions of the state during their arduous transformations. The period relevant to this scenario is the post WW II context and some of the countries that confronted the said dilemma sharply in Asia include India, Myanmar (Burma), Singapore, Malaysia, Indonesia, the Philippines and even Japan. Sri Lanka is no exception. While the compulsions for visioning and re-visioning the state have been both internal and external, those who succeeded in settling into a 'suitable form of state' earlier on, ensuring stability, have been the most successful in achieving their objectives of independence, development and peace.

Japan was compelled in 1946 to accept primarily an externally induced state form and a constitution due to its 'adventures' during the war. After accepting the induced system unhesitatingly it has worked extremely well for the country allowing indigenous development. It is a success story. While India created its own constitution in 1950 after three years of its independence and when the country confronted the 'threat of disunity,' the state and its constitution were considerably changed in 1956 to achieve reasonable stability. The State Reorganization Act was the harbinger. India is also a success story. Singapore and Malaysia have been the most successful in visioning their state forms at the very onset of independence, quite similar to each other, respectively under the able leadership of Lee Kuan Yew and Dr Mahathir Mohamed. Those two countries knew where they were heading from the beginning. No need to say that they were successful.

The unfortunate cases have been Indonesia, the Philippines and Burma. Sri Lanka is our centre of discussion; yet to pass a 'verdict' on her after investigation. While Indonesia and Burma have been somewhat obsessed with their visions for the state, the Philippines has been rather lackadaisical. The former two have invented and reinvented several forms of state, rather back and forth, creating great instability and also conflict. The Philippines has encountered the same by not visioning or not implementing what she envisioned. Both 'lack of vision' or ‘over vision’ has been the case in the countries that have failed in achieving proper independence, development or peace. Not the idealistic, but the pragmatic cases have been the most successful.

The purpose of this paper is to assess whether there is a vision for the state behind the 13th Amendment; what is it, if yes; and whether that vision is realistic and appropriate for the challenges that the country has been confronting particularly on the ethnic front. The previous discussion is only a background to that purpose nevertheless highlighting some of the 'convictions' of the author on the subject through experience and study.

Evolution of Two Visions

Lack of an 'independent vision' of the state or paucity of it has been the character of Sri Lanka immediately after independence and before. The main leaders of the ‘nationalist movement’ did not envisage any new conception of the state let alone a vision. The notions expressed about the 'nation,' 'country' or its ‘future’ was vague. This is in contrasts to many of the countries mentioned in the previous section. The evidence given before the Donoughmore (1928) or the Soulbury Commission (1944) by these leaders or the statements made by them in the State Council are testimony to this assertion. If there had been any vision related to the state it came from the Left movement or SWRD Bandaranaike as dissidents in the main stream politics. The accepted 'vision' was the colonial state and its evolution into dominion status which did not envisioned full independence, decolonization or development. Unarticulated major premise undoubtedly was the ‘majority control of the state’ and this majority was conveniently understood as the ‘ethnic majority.’

There had been a rupture in the status quo when the Federal Party was formed in 1949 with a different vision for the state. While it was natural for a federal vision to emerge from a minority community, the envisaged vision, however, was exclusively based on ethno-nationalism. This was a matter pointed out by the reputed historian Eric Hobsbawm in his Nations and Nationalism (1990: 6-7). Further it was not clear whether the vision was for a federal state or a separate one. The vision also was catalytic in the sense that it was articulated by a small group of elite in order to mobilize masses for that vision. The vision was controversial and discouraged any neutral discussion on federalism independent from ethno politics. It should be noted that SWRD Bandaranaike however contemplated a federal form of state previously rather on neutral grounds.

The state of Sri Lanka after independence was a centralized and a unitary one. That was the heritage of British colonialism unlike in India. Pre-colonial model of the state in Sri Lanka had been more of a Mandala to mean devolved or decentralized. The British model of the state was in operation in Sri Lanka in its ‘puritan’ form although Britain herself had allowed autonomy to Scotland. India evolved differently, the India Act of 1935 establishing a quasi federal structure for its state. It was in the First Republication Constitution (1972) that the ‘unitary concept’ of the state in Sri Lanka however became entrenched. Before that it was only a silent premise.

The Soulbury Constitution (1947) did not contain any explicit conception of the state. It did not declare the state as a unitary one. It was a constitution for a polity rather than a state. The First Republication Constitution was different elaborating the objectives of the state through its preamble, the preliminary articles and chapters on fundamental rights as well as principles of state policy. What it envisaged was a unitary and ‘anti colonial state’ with broad policies on socialism or social democracy. It was brought down within seven years.

It was during the process of the formulation of that constitution the contrasting visions on ‘unitary state verses federalism’ came into open. It was unfortunate that the controversy could not be resolved within the Constituent Assembly although a framework for a resolution based on a compromise existed both in the abrogated Bandaranaike-Chelvanayakam Pact (BC Pact) in 1957 as well as the Senanayake-Chelvanayakam Pact (SC Pact) in 1966. That was a major opportunity lost. It was this unresolved controversy of vision that unfortunately led to conflict and war aftermath of the events of 1983.

It may be argued that if the political leaders of the country after independence had a broader vision of the state, for example, a notion of 'developmental state' as envisaged in Singapore or Malaysia there was a great possibility that the ethnic conflict could have been avoided or averted. Both countries were multi-ethnic societies. It is usually on the basis of development of a country, which could create ample economic opportunities for various ethnic and social groups, that a 'suitable form of state' could be created based on civic nationalism and not ethno-nationalism. This was the main theory enunciated by Hans Kohn in his The Idea of Nationalism in 1940. If the economy is weak it would succumb to ethno-nationalism; if the economy is strong it could create civic nationalism and unity of a country.

During the 1970s there was a considerable fluctuation or zigzag of state vision resulting into two completely different systems of constitution in 1970 and 1977. The unsettled nature of the state vision was the indication. While the Second Republican Constitution (1978) envisaged a different form of government to that of the First Republic, the nature of the state remained the same in its unitary form. In addition, the new form of government which was clearly more authoritarian than the previous system completely mishandled and exacerbated the ethnic conflict in the country. The sequence of major events of ethnic violence in 1977, 1979, 1980, 1981 and 1983 is the proof

Background to the 13th Amendment

It was in the above context of the two conflicting visions of the state, 'unitary verses federalism,' and the transformation of a controversy/conflict into a civil war, that the Indian intervention and as a result the 13th Amendment came into being. While there is no denial of other factors for the intervention, what is relevant for the present discussion is the above.

One may raise the question whether an amendment to a constitution could constitute a change of vision of the state. While the doubt might be correct in the case of ordinary amendments to a constitution, in the case of the 13th Amendment there is considerable reason to believe that the amendment in fact made a major departure in the vision of the state. On the positive side, it created a mid point in the controversy of ‘unitary verses federalism.’ It was not an ordinary amendment but a fundamental one. This fundamental nature of the amendment is obvious, not only from the length of the text but also from its content and substance.

This paper maintains the position that the 13th Amendment constitutes a new vision of the state and that vision needs to be judged not only from the provisions of the Amendment but also from the Indo-Lanka Accord which gave rise to the Amendment. The fundamental nature of the Amendment is also established by the fact that it came as a result of an 'external intervention' and through an 'international agreement' between the two countries, India and Sri Lanka. No external intervention or agreement would have been necessary if the issue at stake was ‘ordinary.’ While the situation was extraordinary, the amendment was fundamental.

The Indian intervention in 1987 came at the brink of a military defeat of the LTTE. It appeared that the purpose was to protect the LTTE. However, the more plausible reason perhaps was the Indian displeasure over the lack of a ‘political solution.’ The Indian central government was rather accountable to over 60 million Tamils in the South for their ‘brethren’ in Sri Lanka. This fact cannot be underestimated or disregarded. There was no political solution offered to the Tamil people whatsoever at that time after the abrogation of the District Council System. This contrasts to the present military thrust against the LTTE and the Indian attitude towards the present situation. While the assassination of Rajiv Gandhi is the commonly attributed reason for the different attitude on the part of India today, the Manmohan Singh government is apparently mindful of the existing framework for a political solution in fact given or ‘imposed’ by India herself.

As Rajiv Gandhi stated on 2 August 1987 after the Indo-Lanka Accord,

This agreement accrues everything that the Sri Lankan Tamils had demanded, short of breaking Sri Lanka’s unity. In fact, it goes well beyond the initial demands of the Sri Lankan Tamils (Quoted by Ketheswaran Loganathan in his Sri Lanka: Lost Opportunities 1996: 131).

Of course Gandhi was referring also to the merger of the two provinces when he further said "it represents major concessions by the Sri Lankan Government to the Tamil demands and Tamil sentiments." However, considering the subsequent developments and threats to the unity of the country and also the split within the LTTE based on a north-east rift, the 13th Amendment without merger constitutes a more realistic solution to the ethnic conflict in the country today.

Vision of the State

Indo-Lanka Accord or the 13th Amendment did not envisage two states in Sri Lanka or a confederation like what the Norwegian brokered and in fact drafted Cease Fire Agreement (CFA) anticipated. This 'anticipation' was obvious from the contours of the CFA and the way that CFA was handled by the 'mediator' and the 'monitoring mission.' In contrast, the vision of the 13th Amendment was clear with primacy given to "preserve unity, sovereignty and territorial integrity of Sri Lanka." This is the basic foundation of the 13th Amendment.

The Accord at the same time acknowledged “that Sri Lanka is a multi-ethnic and a multi-lingual “plural society” consisting, inter alia, Sinhalese, Tamils, Muslims (Moors), and Burghers” (My emphasis). It recognized that "each ethnic group has a distinct cultural and linguistic identity which has to be carefully nurtured." There is no doubt that the vision of the Accord was primarily influenced by the thinking and experience of India. The nature of the 'plural' society was visualized primarily on the basis of ethnicity and language and not religion. The thinking in Sri Lanka is slightly different as expressed in the Mahinda Chinthana and also the above vision had a tendency to overlook the Muslim factor.

The vision also recognized “the Northern and Eastern Provinces have been areas of historical habitation of Sri Lankan Tamil speaking people” but did not go to the extent of recognizing the claim of Tamil homeland. While the notion of 'historical habitation' is largely being accepted in the country at present, the incumbent President has emphasized that Sri Lanka as a whole is home for all ethnic and religious groups. This allows freedom of movement and habitation without segregation or inhibition.

All visions of state have both theoretical and operational dimensions and subject to changes until they settle into a sustainable framework. Sri Lanka at present shows a great potential in settling down with a clear vision emerging. As the present administration has expressed a very clear commitment towards the full implementation of the 13th Amendment, perhaps in stages for practical reasons, what might apply as vision of the state is not only the Accord but also the Mahinda Chinthana or any agreement reached with legitimate democratic parties after democracy is established throughout the country.

No one can expect a constitutional amendment to explicitly express a vision. This is valid to the 13th Amendment. But what it alters in the state structure indicates what it visions. The Amendment inserts a new Chapter to the Constitution as Chapter XVIIA, Articles running from 154A to 154T. The leading clause says,

Subject to the provisions of the Constitution, a Provincial Council shall be established for every Province… with effect from such date or dates the President may appoint by Order published in the Gazette.

What the Amendment in fact inserts is a new layer of decision making and implementation to the state structure. Since the formation of a modern constitutional state in the country in 1883 through the Colebrook-Cameron Reforms, all legislative and executive powers were vested in a central Legislature/Parliament and an Executive/Cabinet respectively, except the subordinate regulation making and implementation vested with the Local Government system. It was for the first time that a drastic structural change in the state became implemented, the local government system also placing under the Provincial Councils. This alone indicates the vision was for a clear devolution of power, although falling short of federalism.

Another important aspect of the changed state vision is in respect of the state language. The 13th Amendment made Tamil 'also' an official language whereby, in a skewed logic, 'eliminating a grievance’ of the minorities over the language issue. This however was a clear departure of the state vision of 1956, the ‘Sinhala Only' policy, although unfortunately the implementation of which has been barred by so many obstacles. The Amendment also declared English as the "link language" which may or may not make much sense in that particular respect; while the importance of English is almost uncontroversial.

Although the 13th Amendment has been an 'externally induced' revision of the state, the substance of the device is consistent with the previous solutions envisaged in Sri Lanka through the BC and the SC Pacts. The Amendment has been in operation at least in seven provinces in the country since 1987. The people as well as the politicians have got accustomed to the system now. It also has the advantage of having a solution to the ethnic problem in Sri Lanka which can be considered compatible with the neighboring Indian system.

Conclusion

There are rather strong arguments that the existing power devolution under the 13th Amendment is not sufficient or fall far short of the aspirations of the minority communities. These may be correct both in the case of the Tamils and the Muslims. But these assertions are not clearly tested as the provincial council system has not yet been properly operational in the case of the North or the East. It has to be kept in mind that a required solution is not for a separate country but for a united Sri Lanka where the aspirations of the majority Sinhalese community also should be kept in mind for a sustainable solution.

The acceptability of the 13th Amendment has gained because of its moderate character. While the Amendment may permanently stand uneasy with Article 2 of the present Constitution which says "The Republic of Sri Lanka is a Unitary State," the majority judgment of the Supreme Court on the subject in 1987 appears correct as the Amendment does not go as far as federalism. The efforts to go beyond the 13th Amendment haphazardly in the draft 2000 August Constitution did fail. It is strange that the main party that opposed that effort was the same party which signed the CFA which appeared a blueprint for a division of the country. What needs to be emphasized is the strange and opportunistic character of Sri Lankan politics where required two thirds majority for a 'ideal' or a 'more profound' state vision through major constitutional change might not materialize.

Nevertheless the 13th Amendment (although with some unfortunate rigidity) might supply adequate space for 'conventions' to evolve in rectifying some of the defects of the present power devolution. One possibility would be to evolve an understanding between the Centre and the Provinces (particularly the North and East) on how to handle the powers in the concurrent list where more powers could be given in practice to those relevant provinces to address the grievances of the respective communities.

The 13th Amendment could grow if the political leadership is willing and if the judiciary does not obstruct. This means to implement the Amendment first and then envisage the developments through experience. There may be other possibilities through political agreements between the relevant parties, the modalities of which could be discussed and devised by the All Party Representative Committee (APRC) and the All Party Council (APC). Most important is to focus on structural and institutional reforms in practical manner rather than being merely obsessed with ‘grand constitutional reforms.’ Reforming the state and reforming the constitution are not necessarily the same. It is best if Sri Lanka could settle its 'vision of the state' soon for the sake of peace and development.

This paper was presented at the "Seminar on the 13th Amendment" organized by National Integration Programme Unit (NIPU) of the Ministry of Constitutional Affairs and National Integration held at the Sri Lanka Foundation Institute (SLFI) on the 20th
Novemebr 2008.

- Asian Tribune -

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