Sri Lanka: 13-A is still a good start for a new constitution

 Sirisena, Ansari, Sri Lanka

Vice President Ansari with Sri Lankan President Sirisena

Source: Sirisena

It may sound a preposterous proposition, especially when Sri Lanka wants to believe that it’s at a breakthrough-point on a new Constitution and thus a new, negotiated settlement to the decades-old ethnic issue. Yet, the fact remains, the Thirteenth Amendment to the Constitution, facilitated by the larger Indian neighbour, is a good document to begin with.

It’s another matter whether contemporary Sri Lanka, post-war, wants to begin implementing 13-A in all earnestness for now, and go along amending its provisions one way or the other, as it went along. The alternative, which is more doable and acceptable to all domestic stake-holders, would be to use 13-A as a base document for taking up fresh negotiations, within and outside Parliament, which is also functioning as the Constituent Assembly.

Post-war, and even earlier, the Tamil National Alliance (TNA) had cited 13-A and the Mangala Moonesinghe Committee Report as among the five basic documents negotiations for a contemporary solution could be negotiated. Some of TNA’s reasons for making or including 13-A as among the basic documents for future negotiations were good, others were not. Or, so it would seem.

Umbilical cord

The Tamils’ good reason was that 13-A was already on the statute, and testing it and trying it was a done-thing under the constitutional scheme. True, they did not give any commitment to review even those portions of 13-A over which not only the Sinhala polity but also Sri Lankan State institutions might have had ‘genuine’ reservations.

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The ‘bad reason’ for the TNA backing the 13-A, especially from a ‘Sinhala nationalist’ perspective, was/is that India as the facilitator would be around to ‘encourage’ Sri Lanka to enforce the power-devolution package under the Amendment. To them and such others like them, 13-A is the umbilical cord linking India to the ethnic issue, more so to the solution part.

If nothing else, 13-A was already on the Statute since 1987. Whether intentionally or otherwise, successive governments had ensured that the Amendment was not implemented, not even tested. Even before testing, they had rejected it, but often without acknowledging such rejection.

On the reverse, through constructive imagination, or imaginative construction, they had ensured that the institution of National Schools and National Hospitals would take away whatever powers that 13-A had sought to devolve on the Provinces.  But there are two sides to every coin, especially of the Sri Lankan variety. Going beyond ingrained and entrenched aspects of ethnic politics, provisions of 13-A were/are no exception.

The un-fought fight over Education and Health was also a reflection of how much and how far Sri Lanka had evolved into a ‘welfare State’ since Independence, where Education and Health had taken a prime place in national-level policy-making, politics and political prestige, all rolled into one. But that was also a point on which the Tamils were demanding additional powers for the provincial administration(s) under their care. They have not stopped pressing their demands, post-war.

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It’s symbolic of what lies ahead in any negotiations on power-devolution, now or ever. The Sri Lankan State and the Sinhala polity have not explained as to why there was such a hurry to take back through the back-door what had (only) been promised at the front-door. The 13-A was supposed to be that front-door business. The National Schools and National Hospitals came under the back-door entry.

For their part, the Tamils have not explained why they were/are as keen on powers over Health and Education as on Police and Land powers for provincial administration(s)? If they care as much as they do for the overall, long-term welfare of their people, they should be welcoming National Schools and Hospitals, too.

Not that they do not want it, or are opposed to the same, but they have symbolised all their arguments and adversity to the National Schools and Hospitals to the perceived denial of devolved powers on the Provinces. If this aspect of power-devolution negotiations has not received the kind of national/ethnic attention it deserved, it has not been ‘sexy’ enough issue as Police and Land powers.

Territorial integrity

The debate on Police and Land powers are unending. In the current round of Constitution-making, there is nothing to suggest that even the ethnic negotiations over the two most sensitive aspects of power-devolution has even commenced. Truth be acknowledged, no negotiations has commenced on power-devolution of the ethnicity-centric kind. Leave aside ‘separatist’ sections of the Tamil Diaspora and their mirror-images back home, power-devolution talks can start only when the TNA with its different factions are on board.

Just now, every stake-holder is still full of himself and/or herself, personally and politically. It’s not even about what’s good for the respective communities, given the polarised and/or divisive nature of inter and intra-ethnic politics in and of the country.  The question of what’s good for the nation is not up for consideration, now or ever. What’s the ‘Nation’ in this context, whose ‘Nation’ is it, are all debatable still in contemporary Sri Lanka, post-war, still.

Along with comes the questions of ‘Unitary State’ and ‘Executive Presidency’, where again the Tamils and the TNA have views different from that of a majority in the Sinhala polity.

Why, the debate on ‘Executive Presidency’ is unending even within the Sinhala polity. Independent of whatever constitutional and/or ideological arguments that may be on offer from time to time, it has more to do with personalities and politics rather than anything else. The question is not if the nation can have an all-embracing power-devolution package within a ‘Unitary State’, or it still needed only a ‘federal solution’, as the Tamils are still obsessed with. It is about convincing the Tamils, both conceptually and otherwise that power-devolution can co-exist with the idea of a ‘Unitary State’.

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Be it ‘Unitary State’ or ‘Executive Presidency’, the support from within the Sinhala polity for both is based mostly on personalities and politics, rather than ideas and ideologies. Presidents and presidential aspirants, ministers at the Centre and ministerial aspirants at the Centre do not want to give up their hold either over the administration and the party as Presidents and/or Prime Ministers, or over the lil’ fiefdoms that they have come to enjoy as ministers.

Job creation

After police powers and land powers, the TNA and the rest of the Tamil polity are seeking out ‘fiscal powers’ for the Provinces, if only to be able to attract ‘foreign investments’ for development of individual Provinces. They seem to have concluded that if and when Provinces got adequate powers to attract foreign and investments directly to the Tamil region, then some of the war-time sufferings of the community could be mitigated with greater and faster job-creation, especially.

Some Tamil leaders even argue that continuing attempts by their youth to migrate or smuggle themselves out of the country owed to lack of job opportunities and earning-capacity of the individual, to support the self and the family. There is no denying that the traditionally education-driven Tamils, preparing themselves competitive for jobs, then in Government and now everywhere, have lost great many years and decades to the war.

But do those youth for rehabilitation or in employment – or, want to migrate outside the country, for ‘greener pastures’? Whatever be the scales of pay and accompanying life-style in the country, and even in a better-off Northern Province than at present, instinctive migration is a bane of all Third World countries and Third World communities. To confuse it, wantonly or otherwise, could make good politics, not good economics – now, or more so, later on. By Government’s own admission, there were at least 90,000 war widows among the Tamils at the end of the war. There was also implied admission that the Government did not have the wherewithal either to rehabilitating them in ways that they would get fixed family incomes month after month, and year after year. That can be made possible if and only if the war-ravaged areas become a hub of large-scale manufacturing activities.

Only in the manufacturing sector can jobs be created in large numbers, and people trained at short-notice and over short durations, for undertaking specific works on the shop floor. In comparison, the IT sector is much more attractive, both in terms of its white-collar status and earning capacities (at least until the ‘Trump bomb’ hit the H1B visa, with its possible trigger all across the West, waiting to happen).

Fiscal powers

The Tamils seem convinced that only direct fiscal powers for the Provinces, or at least the Tamil Province(s), would help them achieve all this and more of welfare for their people. This again is easier said than done. And it’s for reasons that are more than many – and all of them understandable, too. The TNA’s assumptions in this regard are that the Tamil Diaspora members, who have made it big in the West, would only be too happy to invest in a ‘Tamil homeland’ back home. It may be true to an extent, yes. So true would be the inherent Sri Lankan State and security agencies’ suspicions about the source of such funding.

It needs no second-guessing that they would have to assume that at least a part of that money would come from the LTTE’s ‘war-chest’, and could be put to the nation’s harm in the future, too. The TNA cannot speak for such investors, and those investors should be willing to convince the security agencies and the Sri Lankan State that theirs is ‘clean money’ being put to only good and proper use. If such investors are overseas corporate entities or mutual funds, both floated by members of the Tamil Diaspora, their stake-holders would still want guarantees on the investment-pattern and the returns, so to say. In the investment and security environment that the Tamil areas still find themselves, some overseas corporations would not stop for anything but ‘sovereign guarantees’ by the Sri Lankan State, or something near-equivalent.

‘Sovereign guarantees’ are repayment assurances given by sovereign Governments, for moneys that are owed by their national entities to such other national entities from elsewhere. Generally, it involves only Governments or Government institutions, not individuals, or private corporations from one side or both.

That way, provincial government entities are also Government entities in that sense of the term for the Sri Lankan State to give ‘sovereign guarantees’ to such other national or provincial government entities from elsewhere.

This naturally would involve due processes and due diligence, which are already burning issues in Sri Lanka, especially over the ‘Central Bank scam’ case, as at present. On other occasions, there have been other scams.

The question is whether the Tamils and the TNA are ready for such an arrangement. The alternative would involve or at least imply the transfer of ‘sovereignty’, even if it parts, to the Tamil Province, and the rest of the eight in the country, for them to negotiate with foreign Governments and entities for aid and grants, credit and credit-lines. A ‘compromised sovereignty’ is something that the Sri Lankan State and the Sinhala polity would not even dream of just now!

This commentary originally appeared in The Sunday Leader.

The views expressed above belong to the author(s).

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N. Sathiya Moorthy

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