Why The 13th Amendment Is Necessary

By R.M.B Senanayake -May 30, 2013

R.M.B. Senanayake

The Government seems to be bent on amending the 13th Amendment to the Constitution. The JHU 19th Amendment wants to repeal the entire chapter in the 13th Amendment titled Chapter XVIIA which sets up the Provincial Councils. In short it wants to abolish Provincial Councils.

The Government seems to want only to repeal the police powers and the Land powers given to the Provincial Councils and to amend the clause which requires the approval of the all the Provincial Councils to any proposed laws which affect the functions or the Provincial Councils. It wants to change such required approval of the Provincial Councils to read as a majority of the Provincial Councils and not to all the Councils.

But any unilateral changes in the 13th Amendment will only open the way to the whole ethnic issue including the right to secession. The 13th Amendment was the result of an agreement between the leaders of the Sinhalese and the leaders of the Tamils. Prabakaran who wanted only Eelam was pressurized by the Indian government to agree to the Provincial Councils.  The TNA and the other Tamil parties are no longer demanding Eelam although they ask for 13 plus. Now by unilaterally changing the 13th Amendment we will free both the Indian government and the Tamil leadership to canvass for an alternative solution to the Ethnic problem including Eelam.

The grievance of the Tamil people was that they had no voice in the governance of their areas of habitation and that there was discrimination by the Sinhalese dominated central government both in the allocation of funds as well as the allocation of jobs in the public service and in the use of the Tamil language. The  Tamil people in the two Tamil majority provinces had almost no say in the decisions that affected and shaped their lives when the whole country was governed from the Center and decisions made at the Center were made by Sinhalese officials and Sinhalese politicians.

Bilingualism with English as the link language is neither economical nor practical. It is not practical since the official language is the language of record and one can’t keep records in two languages in a practical manner. The only economic  and practical solution in my opinion is to make Tamil the official language in the North and East and devolve as many day to day activities of the State public services  to the Provincial Councils and use English as the link language of communication between the Center and the Tamil speaking Provincial Councils.

So the rationale of  the 13th idea in the Amendment  was  to create two levels of government so as to empower majority Tamil provinces to manage their affairs particularly in matters of local development including the police function and land alienation.

These provinces are constitutionally empowered to make laws through an elected Provincial Council and they were administered through a Chief Minister and a Cabinet of Ministers drawn from the Provincial Council, supported by a provincial public service. The Provincial Councils have legislative competences (both exclusive and concurrent) on most of the local service delivery matters including agriculture, education, community development, housing, health services. There is also a system of local government to facilitate popular participation in governance. In addition there is to be a developed administrative structure in the form of provincial administration, similar to the former ‘kachcheri’ but under the Provincial Council.

The Provincial Councils seek to empower the local communities to be responsible for the local governance. This would address the fears of ethnic dominance which have been expressed by the Tamils by removing some powers and resources from the centre to the provinces.

Since the 13th Amendment was passed there have been radical changes in the Constitution by way of the 18th Amendment. It has removed virtually all the checks and balances on executive power thereby putting to rest the notion of constitutionalism- limited government.

Executive power however has continued to be legitimized ostensibly through the Constitution. The Executive however is very conscious of the need to trace back the exercise of its absolute authority to the original democratic Constitution despite the fact that the values of that constitution are no longer having any impact on the exercise of executive power today.

But the Executive Presidency doesn’t like any dilution of power to the Provincial Councils. As long as the ruling political party controls these Provincial Councils the writ of the Executive President will hold even among these Councils. But this dominance through a political party will not work in the Northern Provincial Council. So the present regime wants to re-centralize power. The Divineguma Law was another law to monopolize political power in the ruling party, by-passing  the Provincial Council system with power and authority flowing directly from the Central Government Ministry straight through to the field officials avoiding the Provincial Council hierarchy.

Under the regime political competition has been muzzled as witnessed in the recent questioning of the Friedrich Ebert Foundation officials for a seminar on how to strengthen the Opposition political party. Civil society too is increasingly intimidated, co-opted or banned from carrying out certain activities like the promotion of human rights by the state. Over time the state seeks to occupy the entire public sphere crowding out both political actors and the civil society.

Apart from political and social control, the state also may be uninhibited in following policies favoring certain groups or parties or communities while undermining others through policy and legislation. In keeping with dominant economic model of the regime the state considers itself the main agent of development. This model advocates comprehensive centralized exercise of power as in the former Communist States. The desire of the ruling party and president to centralize and monopolize power is primarily driven by the need to exercise unlimited control over state resources in order to dispense patronage to political supporters (both individuals and ethnic communities).The monopolization of political power by the ruling party has helped to co-opt the minority political parties like the Muslim Congress or the Ceylon Workers Congress to be co-opted to the government. But the removal of limits on the exercise of executive power to dispense patronage inevitably lead to problems in such coalitions. The system of allocation of resources and development opportunities to individuals and different parts of the country on the basis of political patronage instead of objective criteria will be undermined if there is devolution of power and allocation of resources of the State through an independent Finance Commission. Hitherto the Finance Commission has been a mere figurehead as the allocation of resources to the Provincial Councils is done by the Ministry of Economic Development.

The system of political patronage in appointments promotions has excluded many people who voted or supported the Opposition or were from the ethnic minorities from government services creating a feeling of marginalization among them.  It is this strong feeling of exclusion that has led to the perception that one had to have one of one’s kind in a key political public office for him to access government services and opportunities.

Inefficiency of government under centralization

Under the present system of centralized government there is often need for constant communication between the officers at the Capital and its implementation officers on the ground. This back and forth communication in which field officers must constantly refer matters to the Capital for decision making creates serious inefficiency in the system thus undermining development. Locating decision- making and planning in the centre while implementation takes place in the field undermines co-ordination as the various technical departments operate independently and also refer matters to the centre independently without adequate consultation among each other. Horizontal co-operation in the field is thus undermined by the need to defer to a faraway superior in decision- making. The MTV regularly spotlights numerous failures of government in the field despite the government having spent money. Rope bridges collapse, irrigation channels are not cleared, dams are not repaired and sluices decayed but all these repairs have to be carried out by central government field officers and there is no monitoring of their failures by the central government officials in the capital.

Centralized administration also undermines accountability as the field officers can easily shift the blame for their defective implementation or misuse of resources to their superiors at the centre. The identities of the responsible officers at the centre are normally vague. Decentralization overcomes these challenges by getting the field officers to report to a regionally based superior be it the Pradesiya Sabha or the Provincial Council. Centralization excludes the citizen from decision-making in planning and implementation as well as the field officers. Centralized systems presuppose that the citizen has no ability to effectively contribute to developmental matters. It ignores the fact that the citizen is more aware of their needs, is more interested to support the development programmes in their area and that opportunities for popular participation are necessary in order to develop democratic culture. Centralization denies the local population a genuine platform for participation as the public officers at the centre are far removed from the citizens and not bound by the views or suggestions made to field officers who know the ground situation better. By this we mean that the era where hospitals, schools and other facilities were built, without the requisite operational resources to enable there utilization must come to an end.The effectiveness and efficiency with which public services are provided to support inclusive growth, economic innovation and competitiveness and maintaining quality public services will be key to the success of the country. Public services have been defined as any of the common, everyday services provided by national and local governments with the aim of improving social welfare.