The APRC Process

From hope to despair

by Rohan Edirisinghe, Groundviews, February 3, 2008

“It isn’t that they can’t see the solution. It is that they can’t see the problem” G.K Chesterton, The Point of a Pin

The damp squib of an incoherent, vague and poorly crafted two page document that finally emerged from the All Party Representative Committee highlights two important and worrying lessons. First, it seems that in the area of constitutional reform in general, Sri Lanka is moving backwards rather than forwards. The two page document is clearly Thirteenth Amendment MINUS. Second, in the area of governance, it appears that the major party in the ruling coalition, the Sri Lanka Freedom Party, and some of its coalition partners, the LSSP and the Communist Party, despite the fact that they occupy nearly all the positions in the Cabinet of Ministers, have abdicated their powers of decision making on vital matters of war and peace, to a party outside the Cabinet of Ministers, the JVP, and the JHU, which has a single Cabinet member.

The Thirteenth Amendment to the Constitution

Let’s first be clear about the serious limitations in the Thirteenth Amendment itself. As Professor G.L Peiris, when he was Cabinet Minister under Kumaratunga and Wickremesinghe often said, under the Thirteenth Amendment there was only a “veneer” of devolution of power because “what was given with one hand was taken back with the other.”(Rajapakse’s Minister Peiris, not surprisingly, is singing a different tune). Under this Amendment there is not a single subject or function over which a provincial council has complete control and the centre possesses several mechanisms by which it can regain power to itself. In the twenty years of its implementation, the central Parliament has used the “National Policy on all Subjects and Functions” rubric to undermine devolution of power and take power to itself. Central Government Ministers have waved their Ministerial wands and converted schools and hospitals into national schools and hospitals and in a twinkle of an eye, such schools are brought under central government control. The three lists are drafted in such a way that the powers assigned to the centre are comprehensive and inclusive, while the powers assigned to the provinces are limited. Unlike in India there is no state or provincial representation at the centre to act as a watchdog to prevent Parliament’s encroachment into the provincial domain nor is there an independent public service to limit central executive interference in the affairs of the province. Devolution of power under the Thirteenth Amendment has proved to be fragile and vulnerable in a political culture that is centralized and hierarchical.

Significant powers such as those with respect to law and order and policing have not been implemented. The suggestion in the initial stages of the farcical process where President Rajapakse and his constitutional advisor G.L. Peiris had prepared a document which the APRC was expected to present to the President as its own, that these powers were indeed to be implemented, albeit, 20 years too late, made some people, particularly in the diplomatic community, optimistic. The much pruned or mutilated 2 page document does not suggest that these powers will be devolved at all.

But this excitement in certain quarters about “full implementation” of the 13th Amendment does raise a fundamental question. How on earth could parts of the 13th Amendment to the Constitution, part of the Supreme Law of the country, NOT be implemented for over 20 years? What does this say about the Supremacy of the constitution and the Rule of Law in Sri Lanka? Indeed the fact that there was no legal remedy available to the ordinary citizen or a person committed to devolution of power to demand such implementation makes the situation even more reprehensible. Constitutions that permit non-implementation of its provisions and do not provide for an appropriate legal remedy in such situations, are flawed constitutions. Constitutions cannot rely on political will or the goodwill of the people in power for success. Indeed the basis of Constitutionalism is suspicion and scepticism about those who wield power. This fundamental question which underscores the crisis of constitutionalism in Sri Lanka must be addressed. If there can be constitutions and laws that can be flouted by the executive with impunity what does this mean for Sri Lanka’s obligations under GSP +, where the European Union requires not only ratification of various international human rights documents but also full and effective implementation of such human rights commitments?

However, the 2 page document does not even pledge full implementation of the 13th Amendment to the Constitution. The so-called interim proposals of the APRC (which perhaps should be more accurately described as the Rajapakse/JHU proposals) metamorphosed considerably between 17 January and 23 January. The final two page version, ironically titled APRC Proposals to the President, refers to Action to be Taken by the President to fully implement RELEVANT PROVISIONS of the present Constitution as a prelude to the APRC Proposals. Note- relevant, not All, maintaining the Sri Lankan tradition of non or partially implemented constitutional provisions.

Under steps to permit maximum devolution of powers to the provinces, the 2 page document merely contains vague and pious assertions such as the Government should endeavor to implement the 13th Amendment and adequate funds should be provided to facilitate the effective functioning of Provincial Councils. (See Paras 2.1 and 2.2). Paragraph 4.1 is intriguing and worth quoting in full-

“The Government should take immediate steps to ensure that Parliament enacts laws to provide for the full implementation of Chapter IV of the Constitution on language.”

Chapter IV though inadequate as it does not recognize parity of the Sinhala and Tamil languages, is comprehensive and there is no need for legislation to facilitate its implementation. Rather it requires action against state institutions that continue to violate the constitutional provisions on language. There are also statements stressing the importance of providing for interpreters, translators and other facilities to promote the implementation of the language provisions of the Constitution. The 4 paragraph document when viewed as a whole is not really a set of constitutional proposals at all, but rather a memorandum containing a series of statements of what should be done to facilitate the implementation of certain provisions of the Constitution.

Devolution to the North and East

That the two page document is not even a set of constitutional proposals is clearly demonstrated by how the document deals with one of its most important proposals, the creation of an Interim Council in the north. Paragraph 3.3 states baldly,

As it is not possible to hold elections in the North, the President could make appropriate order (sic) to establish an interim council for the Northern Province in terms of the Constitution.

Given the present President’s proclivity to violate the Constitution (e.g. the 17th Amendment to the Constitution) perhaps we should feel reassured by the last phrase of the paragraph. However how such an interim constitution is to be established, under what provisions of the constitution, should be made clear.

The 13th Amendment to the Constitution does not provide expressly for the establishment of an interim council. Therefore there is no clear or obvious constitutional mechanism by which such an interim council can be established. However, there do exist some constitutional provisions that may be used to achieve such an objective. They are Articles 154 L and M of the Constitution. What is worrying however is that certain groups allied to the government have suggested that an interim council be created using Article 154 T of the Constitution instead. This in my view would be unjustified.

Article 154 T is described as a provision dealing with Transitional Measures and reads as follows-

The President may by Order published in the Gazette, take such action, or give such directions, not inconsistent with the provisions of the Constitution, as appears to him to be necessary or expedient for the purpose of giving effect to this Chapter, or for the administrative changes necessary therefor, or for the purpose of removing any difficulties.

It is clear from the 13th Amendment read as a whole that this provision was introduced to enable the President to deal with any practical difficulties or administrative challenges that might have arisen with the introduction of the new provincial council system in 1987. Using such a transitional provision to effect a significant change to the system more than twenty years after it was introduced is highly questionable.

Articles 154 L and M are more appropriate provisions for the establishment of an interim council and subject to greater checks and balances as well. They deal with a situation where there has been a failure of administrative machinery. In such a situation it provides that the President may by Proclamation assume to himself the administrative powers of the Province and the powers of the Governor. He can also declare that the legislative powers of the Provincial Council shall be exercised by Parliament. Article 154 M provides that thereafter Parliament may confer the legislative power of the said Provincial council on the President and also authorize the President, in turn, to delegate such legislative or statute making power “to any other authority” specified by the President. While at first sight this Article is somewhat alarming in that it can permit a President with a pliant Parliament to grant the legislative power of a provincial council to even an NGO or the YMBA, and has often been cited as one of the numerous examples of the vulnerability of devolved power under the 13th Amendment, it is submitted that this is the constitutionally permissible manner in which an interim council should be established in the north.

There remains of course another fundamental question. If an interim council is established in the north consisting entirely of Presidential nominees and subject to the Control of the President, does it promote devolution of power or Presidentialism? The APRC’s amazing claim that “conditions in the east are conducive to holding elections to the Provincial Council” despite the atmosphere of fear, intimidation and lawlessness that exists there, and despite the absence of constitutionally mandated independent institutions such as the Elections Commission and independent Police Commissions and Public Service Commissions raises similar concerns. If only groups in alliance with the government will be viable candidates, the elections will hardly be free, and the end result again will be the extension of the centre in the east.

The Tail Wagging the Dog?

The political dynamics of the past 18 months which have contributed to the 2 page memorandum raise many concerns. When President Rajapakse addressed the Inaugural Joint Meeting of the APRC and the Panel of Experts on 11 July 2006 he urged the members to approach their task with a sense of urgency. He stated,

“It is imperative that the process moves speedily and effectively. After more than two decades of a protracted, cruel and violent conflict, the country cannot wait any longer to usher in a just and sustainable peace for all peoples of Sri Lanka.

He added some advice also on the substantive issues involved-

I would urge that your proposals be creative and imaginative…The role of the APRC and as well as its panel of experts is to fashion creative options…

One and a half years later, the APRC process despite the best efforts of its experts and chairperson, has produced a set of interim proposals that lack creativity. Given that its two main sections on “steps necessary to permit maximum devolution” and Special Arrangements to permit maximum devolution” do not even mention the subjects of police powers, land or a practical mechanism to ensure that the provinces exercise more powers over concurrent list subjects, it is clear that the architects of these proposals envisage a continuation of the status quo at best which given the tradition of non-implementation of powers under the 13th Amendment ultimately results in a arrangement that is 13th Amendment Minus.

Part of the explanation for the retrogressive nature of the APRC proposals is the extraordinary influence of the JHU and the JVP in the Rajapakse administration. The JVP has its cake and eats it too. Its members were elected on the UPFA ticket and it is clear that the JVP would have not gained such a large number of seats but for such an alliance. Yet it claims to be part of the Opposition in Parliament. The JHU has a single member in the Cabinet and a handful of parliamentary seats. The SLFP, LSSP, Communist Party and MEP are older and more established members of the UPFA coalition. Many of their leaders, members of the present Cabinet of Ministers, have over the years by word and deed, indicated that a reasonable political solution, whether interim or longer term, must be 13th Amendment PLUS PLUS, if not federal in character. Many of them were involved in shaping and defending the Draft Constitution Bill of 2000 which went significantly beyond the 13th Amendment. Yet it seems that the JHU and JVP, with little influence in the Cabinet of Ministers, which under our Constitution is supposed to be responsible for the direction and control of the government of Sri Lanka, have more influence and control in the Presidential Secretariat, the real locus of political power in the country today. Another disturbing trend during the past one and a half years is that the President seems more inclined to listen to these two parties and follow their policies than the policies of his own party, the SLFP, which under the leadership of all 3 Bandaranaikes, S.W.R.D, Sirimavo and Chandrika, adopted relatively moderate policies on the ethnic issue. The JHU/JVP tail seems to be wagging the UPFA dog and one is tempted to ask this government, certainly with respect to the APRC proposals, not only “where’s the beef?” but also “where’s the SLFP?”

Also read:
Rohan Edrisinha on the APRC Proposals and the 13th Amendment to the Constitution (A video interview with Rohan)

Comments following article:

N. Ethirveerasingam said,

Rohan,
A good legal, academic and moral argument. However, the reality is that no political party in power will want to give up power or be thrown out of power. Though JVP is not in the cabinet, they can throw the Rajapakse administration out of power with the help of UNP who aspire to gain power. Rajapaksa cabinet cannot make any decision that a significant majority of Sinhala voters (including the Rajapaksa administration) will reject. What it convey to us laypeople is that the 13th amendment was still born and, with time, it petrified.

The Sinhala and the Tamil communities are like the right and left half of a brain. They were joined with a connective tissue, the “corpus collosum”. Mr. B and his majority blocked communication between the two brains with the Sinhala Only Act in 1956. Mrs B and her leftists performed the surgery to cut the connective tissue in 1972. It is foolish for the right-half to pronounce that there is no left half and that both are one, the right. It is best not to harm each others independent existence until such time we are creative enough to grow a new connective tissue better than the old one, to make both halves benefit equally from each other.

Saravanamuttu said,

I would rather turn G.K.Chesterton’s quotation on its head to read: It’s not that they cannot see the problem. It is that they do not want to see a solution”!
The reasons are obvious enough to those who have followed the contorted course of politics over the past 60 years. In cricket language: 60, not out! After all, it is the stuff that divisive ethnic and religious politics has been made of and cannibalised by the two major political parties in power by playing up to minor parties whichever props them up in power like see-saw politics.

In order to understand the reasons for procrastinating on the Thirteeth Amendment one has to go back to the history (a poor record at that) of constituion making in Ceylon/Sri Lanka. What became of the consensual 1948 constitution? And how was it unceremoniously ditched in 1972 and substituted by a unilateralist one which gave primacy to Sinhala and Buddhism while rejecting the aspirations of cultural minorities. The Thriteenth Amendment which tried to forge power sharing with largely Tamil speaking people of the north east was still born. The All Party Conference tried to revive it under the same kind of process from 1998 to 2000 and failed. With hindsight what has happened to the present one (sans the majority of Tamil speaking MPs from the north and east this time round) is a stilted job which cannot pass muster by any consultative political standard or process.

It has become well known that the present ad hoc document is what the President (and his supporters) want to see for reasons best known to themselves. It is surmised that the objective may be to utilise it to secure aid from the international community apparently for development of the north and east for whatever it is worth. What became of the $4.5 b in aid under the botched 2002 CFA and tsunami foreign aid under the guise of reconstruction of war affected areas are all too fresh in people’s minds.

Nothing is lost by trying . But the APRC document is not going to solve any of the political problems of the affected people or the north and east. It is an artifificial sop at best.

Sam Thambipillai said,

Ethnic discrimination is the fundamental reason for the present ethnic conflict. How does the state attempt to undo discrimination and bring about justice is more important than any other adventures.

The existence of extreme discrimination against the Tamils of Sri Lanka, especially in the North East, is denied by some Sinhala extremists in the South. The JVP “fools the foolish in the South” with such a false denial.

The real situation in Sri Lanka is that the attitude and behaviour of any Sinhalese and any government is determined by one factor alone and that is whether you are a Sinhalese or a Tamil.

Those who deny discrimination place the argument that it is not only the Tamils but the Sinhalese are also suffering. This is fundamentally wrong. Even if Tamils and Sinhalese suffer together because of economic factors, there is solace to Sinhalese in specific areas but not to any Tamil.

Any Sinhalese person gets good treatment by the the police and he is PROVIDED with a good education, a job by the state, industrial and farming facilities, fertile state land, better health facilities, an impartial judicial system, economic and development support, export and import preferences, manufacturing and trade licences, better access to consumables, easy travel and communication, security favour and rehabilitation from tsunami, just because he is a Sinhalese.

On the Contrary, any Tamil person is abused by the police
and is DENIED a good education, a job by the state, industrial and farming facilities, fertile state land, better health facilities, an impartial judicial system, economic and development support, export and import preferences, manufacturing and trade licences, better access to consumables, easy travel and communication, security favour and rehabilitation from tsunami, just because he is a Tamil.

This “just because” factor differentiates the attitude and the treatment meted out to any Sinhalese or Tamil by the state in Sri Lanka.

In apartheid South Africa, it was the same “just because” factor that differentiated the attitude and treatment meted out to any black or white person.

Apartheid system was considered oppressive, cruel, wicked and evil. There is no doubt whatsoever that the discriminatory system against the Tamils is equally oppressive, cruel, wicked and evil yet the world is not equally vociferous against it.