27th July 1997


Home PageFront PageOP/EDPlusSports

The 13th Amendment after a decade

Experimenting with political package

By Kishali Pinto Jayawardena

Jubilation over the recent Kalutara consensus had scarcely subsided when a mischievous question raised its head.......what exactly had been agreed to by the 200 or so SLFP men and women over whose head the party whip had been cracked? Aspects of the Devolution package discussed in fact omitted the most crucial issues such as the unit of devolution (the North East merger) and matters relating to land and police powers. A noted political science observer present at the meeting had this to comment on the quality of the discussions "What were discussed were the most basic points......the lack of awareness of the real issues was appalling" Small wonder it is then that Trade Minister Kingsley Wickremaratne was reportedly left confused at the end of it, asking as to whether somebody could explain to him what this was all about.

The country shares the Trade Minister’s confusion. A decade has passed since the Indo Lanka Accord was signed leading to the Thirteenth Amendment. Since then, much water and more blood has passed under the bridge. The Thirteenth Amendment has been discredited with Justice Minister G.L.Peiris calling it a "sham" in a memorial lecture recently. This led to immediate anger on the part of some commentators who saw this as too harsh a dismissal of something that they had risked their lives to defend in 1987.

But that the whole has been an experiment which has miserably failed has long been evident. An absence of political will has been cited as the main reason. Whole portions of the law relating to devolution of police and revenue remain untouched up to date. Deposed Chief Minister of the North East Province Varatharajaperumal outlined his frustration thus

" Even the meagre powers devolved by the Thirteenth Amendment have been systematically denied to the province....some of the glaring features of the Amendment are that Appendices to the Provincial List take away what is devolved in the main text. The Concurrent List takes away powers devolved by the Provincial List. The Sri Lankan Government treats the Concurrent List as its own preserve like the Reserved List."

Thus if ,an epitaph for the Thirteenth Amendment is sought for, the most appropriate could well be that bulldozing devolution without any real party or national consensus, in the context of a continued demand for Eelam is bound to fail.

In retrospect, have we learned any lessons here ? True, the devolution package on offer is in theory a vast improvement over past proposals. But the old, old arguments still remain, only the national landscape has become more frightening.

"Experimental devolution based on communal lines has not worked. This cannot be clearer now. We are only paving the way for more fragmentation," comments MEP chief Dinesh Gunewardene who points to the claims for a separate Muslim devolved unit as one example.

Confusion is confounded by the fact that no one knows what exactly is on offer. Though statements have ben made that 75% of the package has been finalised, the fact remains that the 25% yet in flux is the most important. And no guarantee exists as to the stability of what has in any case been announced, as seen by the speed with which the Government is now withdrawing on its proposal to decrease the number of parliamentarians. Meanwhile, an official announcement recently of a startling new array of social and economic rights was obviously some judicious arm twisting in order to drum up support for the more controversial parts of the package.

The third draft is said to significantly modify the proposals put before the country last year. It is understood that they contain specific provisions relating to the implementation of the Executive Committee system at regional level. The idea that a modified ExCo system ought to be transported to post colonial times has had a surprising number of backers, ranging from SWRD Bandaranaike and Dr. Colvin R. de Silva to MEP’s Dinesh Gunewardene, former UNP Minister Gamini Jayasuriya and the Organization of Professional Associations in recent times. They have urged an implementation of the ExCo system at national level.

Whether the present proposals will meet with any measure of approval is however uncertain. The draft contemplates a mixture of the ExCo system, proportional representation (PR) and central politicking in a manner that has aroused the ire of those who had been in the forefront of advocating changes.

The proposals provide that there shall be a Board of Ministers with the Chief Minister at the head in each Regional Council. The Ministers advise the Governor who shall act on such advice, thus making the Governor a mere figurehead comparable to the Governor General of olden times.

After the conclusion of an election, the Commissioner of Elections will designate the number of Ministerial seats on the basis of PR.

The Commissioner then has to inform the General Secretaries of the political parties of the number of Ministries allotted to them and the Secretaries should inform the Commissioner within 48 hours as to who would be appointed as Ministers. The decision therefore lies with the Centre, effectively undermining any real devolution.

Meanwhile, the Council will elect members from themselves to form Executive Committees for each Ministry. Members of the Committees may make policy proposals to their Minister with regard to any subject under their purview.

All this is of course a far cry from the actual ExCo system in 1931 in which the assemblies themselves formed into a number of committees and appointed a single person as their head and responsible as the Minister. It was thus that they were able to exercise some measure of influence over their Ministers.

Each of these Ministers came together to form the Board of Ministers comprising also of the Chief Secretary, Legal Secretary and Financial Secretary who were nominated by the Governor. In arguing for a similar system in modern times, the thinking was that within the smallness of an executive committee, party posturing would be lessened, and there would be more willingness to give and take. Whether this argument will hold, in the presently proposed rather unhappy mix of the old and the new is anybody’ guess.

But what about the cry that the need of the hour now is not a new package, but rather an effective implementation of the Thirteenth Amendment itself ? The EPDP has been vociferously advocating this particular panacea for some time now.

Leader of the EPDP Douglas Devananda has been somewhat ingenious in making use of a particular provision in the Thirteenth Amendment which allows the amendment of the law upon approval of the Councils and a simple majority in Parliament. Devananda argues that this should be made use of to amend the law as to provide for necessary changes to the Thirteenth Amendment in order to implement greater devolution. This might be a more realistic option than pushing through devolution packages that are unlikely to see the light of day, Devananda has said. Critics like Dinesh Gunewardene and Ven.. Sobitha Thero see more merit in arguments to resuscitate the Thirteenth Amendment than a realistic pushing forward of the PA devolution package.

"At least, this law is on our statute books. Perhaps this should be first reformed and made to work properly before grander plans are put into effect," said Ven Sobitha Thero.

Justice Minister G.L. Peiris has not been very favourable to this idea.

Debate and counter debate on devolution thus continues. At Kalutara, we saw SLFP politicians committing spectacular hara kiri in bending themselves over double to accommodate more extensive measures of devolution than what they once hysterically opposed in 1987. Imagining the UNP in the same spirit of political opportunism is not all that difficult, given the past. And ten years after the Thirteenth Amendment, the kindest thing to say is that we are still trying.

Comparison of the Thirteenth Amendment

with the present Devolution proposals

Then: Establishment of Provincial Councils in nine provinces with the North and the East Councils being "temporarily" merged.Unitary status of the Republic of Sri Lanka

remains unchanged.

Now: The "unitary" nature of the Constitution is replaced with a kind of quasi federalism as the draft provides that the Republic of Sri Lanka shall be an indissoluble Union of Regions.This provokes a storm of protests when the proposals are released.

Then: In a situation of emergency,the President may by proclamation assume to the Centre the administration of the Province,while the powers of the Provincial Council can be taken over by Parliament.The President has no power to dissolve a Council.An amendment act of 1990 provides that where more than half of the members of a Council expressly repudiate or manifestly disavow obedience to the Constitution,or when the Council ceases to function,the Council shall stand dissolved.

Now: Article 26(a) of the draft proposals permit the President in a situation where there is a clear and present danger to the unity and sovereignity of the country,by proclamation to assume to herself/himself the functions and powers of the Governor,the Board of Ministers or any other authority.The President is also given the power to dissolve the Regional Council in such a situation,though if such dissolution is to be in force for more than 14 days it must be approved by Parliament.

Then: There is confusion as to whether the Governor is a nominal leader acting on the advice of the Board of Ministers or whether he can override his Ministers and act on orders of the President .l

Now: The Governor is clearly a figurehead, with powers comparable to the Governor General of olden times

Then: Subjects devolved to the Provincial Councils are contained in the Provincial Councils List(Police and public order,Planning,Education and educational services,local government,Provincial housing and construction etc) while subjects retained by the Centre are in the Reserved List.(National Policy,Defence and National Security,Foreign Affairs etc)

Parliament is also given the power to make laws with regard to subjects specified in the Concurrent List after such consultation with the Provincial Councils as Parliament considers appropriate.The Concurrent List relates to subjects such as Planning at provincial level,Higher Education,education and educational services ,National Housing and Construction, Agriculture and Agararian Services,Health etc)

Now: The Concurrent List is abolished,increasing the number of subjects in which a Council will have sole authority to legislate.The Regional Councils are also given greater revenue raising powers.

Then: Devolution of power with regard to the judiciary is not set down in detail.

Now: The draft provides for the establishment of a regional judiciary and a regional Attorney General.

Short build up to the Accord

1983 Anti Tamil Riots and Militirization of ethnic conflict

1984 All Party Conference(APC)

* pre existing District Development Councils to be permitted to combine into one or more Regional Councils

* Regional Councils would have legislative powers in respect of subjects devolved to it.The devolved subjects to be worked out through negotiations

* Chief Minister and his Council of Ministers to constitute the executive arm,supported by a Regional Public Service

APC fails through inabilty of political parties to agree coupled with increasing militarization of the ethnic conflict.

1985 TULF MPs are killed by militant groups.Terrorism brought to Colombo with bombings of civilians

1986 LTTE liqudates TELO and then EPRLF.Talks held in Thimpu Bhutan between the Sri Lankan Government,TULF and the militants under the auspices of the Indian Government.Talks fail.

Ten years of Abortive Conflict Resolution (1987- 97)

1987 Sri Lanka Army get upper hand in Jaffna but Indian Government intervenes on behalf of LTTE and other groups.India armtwists President Jayawardene into signing the controversial Indo Lanka Accord.The Thirteenth Amendment is passed in Parliament with the Supreme Court approving it by a razor thin majority. Provincial Councils form merging north and east.India sends troops to north and east of Sri Lanka causing violent demonstrations in the south of the island.

1989 President Premadasa begins peace talks with LTTE.Asks IPKF to leave.

1990 LTTE reject peace talks and return to fighting.

1991 LTTE assasinate Indian Premier Rajiv Gandhi changing Indian support to Indian anger for LTTE cause

1993 LTTE assasinate President Premadasa

1994 Opposition candidate Chandrika Kumaratunge promises peace with the LTTE and partly due to this wins the elections.

1995 onwards - President Kumaratunge initiates peace talks with LTTE.

Talks fail.War is renewed in the North and East.In August 1995 broad principles of the PA Devolution package is put before the country,succeeded by the first draft in 1996.

Continue to the News/Comment page 5 - * School heads warned of student demos, * Don’t miss the chance: Downer, * Big packet if there’s peace , * Pressing ahead with media reforms, * The UN in the age of identity, * American primacy is not a good thing

Return to the News/Comment contents page

Go to the News/Comment Archive



Please send your comments and suggestions on this web site to or to