Sri Lanka’s 13th Amendment: Doomed With The New Constitution? – OpEd

As expected, the government is gearing up to enact a new constitution. In his first policy-statement delivered on August 20, President Gotabaya Rajapaksa declared that the government would “formulate a new constitution suitable for the country. In this, the priority will be given to the concept of one country, one law for all the people.” The landslide victory in the parliamentary election, the ability to manufacture the two-thirds majority necessary to introduce a new constitution, and the about 60 percent popular support the government currently enjoys have provided the confidence that it could structurally alter the Sri Lankan state and society. 

19 First 

Government sources have revealed that they would replace the 19^th Amendment with a new amendment (20^th) before moving on to cancel the existing Constitution. When the present Constitution is canceled, the recent amendment would also be removed. Hence, the idea of replacing the 19^th Amendment before introducing the promised new constitution seems illogical. In reality, it is a very savvy move. The 19^th Amendment is irritating to the government, and it believes that the Amendment must be removed. That is a priority.  

Right now, the government has 148 seats that belong to the SLPP-led coalition. Three additional votes in Parliament would be supplied by the National Congress, the Tamil Makkal Viduthalai Puligal, and the Our Power of People Party. This would increase the government’s strength in Parliament to 151 seats. Hence, the government has the bare minimum in terms of the capacity to make any changes to the Constitution. 

Meanwhile, enacting a new constitution would be a substantial process and might take a long time, perhaps a year. One year is a very long time in politics, and anything could happen in that time. Moreover, since a constitution-making process could generate resentments, any dissent from any faction could derail the entire process. The government is not ready to take that kind of risk. On the other hand, replacing or repealing the 19^th Amendment could be quick and easy. Hence, the urge to deal with the 19^th Amendment first.  

13^th Amendment

The 13^th Amendment created the provincial council system in Sri Lanka. I believe that when a new constitution formulated by the SLPP government becomes a reality, the provincial councils would be fully or partially eliminated. In a recent article entitled, Sri Lanka’s General Election Results: Ready for a Structural Change? I pointed out that “provisions of the 13^th Amendment could be dropped in favor of a system based on a Gramarajya concept.” 

Some Sri Lankan commentators do not agree that the provincial councils could be abolished. They believe that the 13^th Amendment and the provincial councils have become an integral part of the Sri Lankan system; hence they cannot be undone. My argument that the provincial council system would come under severe stress when a new constitution is adopted is based on two primary factors. 

One, Prime Minister Mahinda Rajapaksa has been a constant critic of the 13^th Amendment and the provincial councils, although for strategic purposes he promised to improve on the powers devolved by the Amendment. During the last phase of the war, the Rajapaksa government talked about a scheme called the “13^th Amendment plus,” only to deal with the Indian problem. The promise never materialized. Once the war was won, albeit with Indian assistance, the government moved to dilute the provincial councils’ powers.

In a 2013 tweet, Mahinda Rajapaksa argued that the provincial councils did not help Sri Lanka. Gotabaya Rajapaksa’s reservations about the provincial councils are not a secret either. The State Minister for Provincial Councils and Local Government, Sarath Weerasekara, has already declared that “harmful” provisions of the 13^th Amendment would be removed. From a nationalist Sinhala point of view, no provision of the 13^th Amendment could be useful.   

Therefore, ideologically, the present government does not believe in the essence of the 13^th Amendment.  A new constitution would provide the government an opportunity to undo the provincial council system as part of a “package-drop” where many aspects of the present Constitution will be dismissed. The point is that the government does not need to do anything that it does not like, especially when there is no pressure from a strong Tamil entity or powerful international/regional actors. However, the government may develop an alternative system for devolution of power, most likely a system that operates at the grassroots level and is not defined by ethnic factors. 

Two, as almost everyone knows, the Maha Sangha, especially nationalist monks, and nationalist partners of the government, for example, National Freedom Front, are opposed to the 13^th Amendment. When the new constitution is enacted, there will be pressure from these groups to drop the Amendment. It will not be easy to ignore allies’ protest mainly because the government has a fragile two-thirds majority. Even if partner parties are handled, the anti-13^th Amendment monks could not be overlooked, especially by a government that is more than keen to act on the Maha Sangha’s advice. Doing so would be suicidal. Therefore, a new constitution would most likely undo the 13^th Amendment, especially the provincial councils. 

The Indian Wall

There has been a school of thought, especially among the Tamil community, which suggests that the government cannot scrap the provincial councils because India will defend it. They rely on the fact that the provincial council system was India’s baby. The recent statement from the Indian High Commission in Colombo suggesting “full implementation” of the 13^th Amendment has strengthened their confidence. They most likely are ignorant of the real history of the end of the war in 2009. 

Since India and Sri Lanka agreed on the need to terminate the LTTE, the collaboration between them reached the zenith during the last phase of the war. To coordinate their efforts against the LTTE, they set up a committee called the “Troika.” Three high ranking officials from Sri Lanka and India were in the group. Shivsankar Menon, the former Indian Security Advisor, has reportedly claimed that the troika has achieved tasks that were considered impossible. I am sure he meant the defeat of the LTTE. Menon was a member of the troika. 

In his book Choices: Inside the Making of India’s Foreign Policy, Menon claimed that India’s concerns about civilian safety in the war zone were regularly conveyed to the Sri Lanka authorities, but in practice, India had very limited options. Hence, it settled for token assurances from the Sri Lankan government. These assurances were essential to deal with the tension created by the war in Tamil Nadu. Currently also, India has very limited options because it needs to be in the good books of Sri Lanka due to regional geopolitical compulsions. In other words, it cannot antagonize the Sri Lankan government due to the China factor. Therefore, again, it will settle for token assurances. 

Moreover, the Indo-Lanka Agreement, which provided the 13^th Amendment’s foundation, was a product of a different era. It was mooted and constructed by the (Indian National) Congress government. The current BJP led government had nothing to do with it. Hence, my take is that the BJP government would not have the same level of commitment to the Indo-Lanka Agreement and/or the 13^th Amendment. 

Therefore, when provincial councils are dropped, India will not vigorously fight for it. However, there will be plenty of statements, like the ones recently made by the Indian High Commission. The Tamils who believe that India will defend the 13^th Amendment would have to look for New Delhi’s actions rather than statements. Statements are made to appease public opinion, especially in Tamil Nadu. Indian statements on this issue could be deceptive. 

Hence, the conclusion is that since there will be no pressure from domestic or regional actors on the government, the 13^th Amendment, especially the provincial council system, would go down with the current Constitution. The 13^th Amendment also elevated Tamil to the “official language” status. I do not believe that this provision will be dropped in the new Constitution. Perhaps, I am too naive.