JHU not ready to reach compromise on 13-A

By Manjula Fernando

Technology, Research and Atomic Energy Minister and JHU General Secretary, Patali Champika Ranawaka in an interview with the Sunday Observer explains why his party objects to the 13 Amendment and the compromises the JHU would like to make for reconciliation.

Q: What is the JHU’s stance on the 13th Amendment?

A: We are for the abolition of the Provincial Council system and total repeal of the 13th Amendment. There are two main reasons for our argument. Firstly, the manner in which the 13th Amendment and the Provincial Councils Act were introduced to Sri Lanka. It was illegitimate. People who opposed the Amendment and the Act, were suppressed. Over 66,000 people were killed. And many more disappeared and over 600,000 people fled the country because of the repression unleashed by the J.R. Jayewardene regime. I must stress that this particular Amendment to the Constitution was forced upon people at gun point.

Secondly the 13th Amendment is undemocratic. It was not passed in Parliament after seeking a public mandate. Parliament which passed the Bill was also an illegal body because it extended its term in 1982 using a referendum.

Another evil of this piece of legislature is that the Supreme Court verdict was distorted to make way for the 13th Amendment. Of the nine-bench Supreme Court, five judges were of the opinion that one clause or all the clauses of the 13th Amendment should be brought before the people. They ruled that it has to be passed in a referendum since it was inconsistent with the existing Constitution.

But JRJ simply made use of the Solicitor General and the Attorney General to ignore the Supreme Court decision and interpret it as requiring only a two thirds majority in Parliament. Therefore it is an illegal Amendment to the Constitution. It is illegitimate and undemocratic. This is the basic context in which why we have opposed the 13-A.

Further it goes against our history, because the Amendment and the Act were based on the Indo-Lanka accord. The Indo-Lanka accord clearly defined the North and the East as the historical homeland of the Tamil people. We don’t agree with that. There is no archaeological or historical proof to verify this argument. Only the armed terrorist force the LTTE claimed it was their motherland and that other communities in that should be chased away.

Q: Why do you oppose the 13th Amendment? Don’t you think your fears are just a storm in a teacup?

A: We must also acknowledge that there was and is a very serious neo-natzi type Tamil separatist movement in the North and they have not given up their effort to carve out a separate land. When you talk about the 13 - A and the Provincial Councils Act, we have identified five core issues which may be used to carve out a separate state within the Northern province or the Eastern province in Sri Lanka.

One is that when you try to pass a particular legislature or an Act in Parliament in relation to the Provincial Council list or the list of subjects there, you have to get the approval of the PCs as well. If one council objects to the Act, the Government needs two thirds in parliament to get it approved. This Government enjoys two thirds in parliament but a future Government may not be so lucky.

Under the present preferential system of election. No single party can get two thirds in parliament. Even with the unprecedented polls victory after the defeat of terrorism, the present Government secured only 144 seats, because of the crossovers the number of seats were raised to 151 subsequently and 162 later. But that is not always possible.

In the Indian Constitution, if a majority of the states are in support of a particular proposal, then Parliament has the power to pass it.

But in Sri Lanka a single council can block it even if all the others are in favour. With such restrictions on the centre, it goes even beyond the Indian Constitution. Our suggestion is that this clause needs to be amended.

Fortunately Prof. Peiris tabled a Cabinet Paper this week amending this particular clause.

The other flaw is the power to amalgamate two provinces. Most of the people are of the opinion that when the Supreme Court abrogated the North/East amalgamation illegally made by JRJ, that Chapter was closed. But it is not so. The power to amalgamate provinces is still in the Constitution. What the Supreme Court did was to separate the North and the East, but the law that facilitates this amalgamation is still intact.

The Constitution clearly stipulates that one or more provinces can form a single Provincial Council subject to a simple majority in Parliament. When there is a weak government in Colombo, which will totally rely on the TNA, this clause will have grave consequences for the country.

The Indian Constitution does not give power to merge states but any state can split, in the state of Andra Pradesh it has happened.

These are the reasons why we think the 13th Amendment should go. Fortunately President Mahinda Rajapaksa has taken serious note of our concerns and Cabinet Paper drafted by Minister Prof. Peiris calls for the abrogation of this particular clause as well.

Q: What are the other issues the JHU has raised ?

A: The third is the dissolution powers vested with the President, under the 13-A. According to the Constitution the President can dissolve a Provincial Council on three grounds; if essential services are being disrupted, in an instance of an armed struggle, or if the Governor complains that the Law and Order situation is unsatisfactory.

But in India when some state government infringes constitutional powers vested with it, the Central Government can intervene and direct the Governor to exercise executive powers. Article 256 and 257 clearly stipulates these powers. This too needs to be amended.

With regard to police powers there are two arguments expressed at the party leaders meeting as well. One group says, when the 17th Amendment was presented and passed in Parliament, all the so-called Independent Commissions, were changed and the Independent Police Commission was formed. According to our Constitution the central government had a police commission and also the Provincial councils. All these were changed with the 17th Amendment.

The 18th Amendment completely amended the 13th Amendment, transferring some of the powers vested with the Police Commission to the IGP. They argue, that police matters within the Provincial Councils are also under the IGP now.

The second argument is, although President Premadasa passed an Act to constitute Provincial Police Commissions in 1990, the date when it will come into effect has not been gazetted. So until it is gazetted you cannot devolve police power to the provinces, thus they cannot exercise police powers.

Our argument is different from both these. The 17th Amendment did not touch any powers relating to the Provincial Councils. It is a serious situation. NGOs talked about good governance of only the central government, but not the provincial councils. As a result the 17th Amendment did not touch on Provincial Council powers, hence the police commissions, nor did the 18th amendment.

The Constitution is the supreme law, it supercedes Acts. It is alarming that even the Constitution itself has given provinces such powers. Under police powers, Article 11 of the Constitution clearly stipulates that, the Chief Minister has all the powers with regard to the national police as well as the provincial police. The Chief Minister can command the Senior DIG and the President cannot stop him.

The fifth one is the land issue. There are two impediments, if you have mega development projects that encompass various provinces, you have to resettle people across provinces. For instance like the Mahaweli project which involved Central, North Central and Eastern Provinces. Now according to the Constitution, when resettling, it has to be done according to national ethnic ratios, 75 percent Sinhalese, 15 percent Tamils and 9 percent Muslims.

But the second clause says it should not change the existing demographic pattern, which means if there is 95 percent Tamils in Vanni, the State cannot settle people there.

Landless people cannot be given land because that land has already been identified as Tamil lands. Our argument is landless people should be given land without considering their ethnicity or religious background.

If the Tamils are the most affected in the development project, they should be given land with no discrimination. It has to apply to all communities. But my argument is that after the 13th Amendment this is prohibited.

The other issue is the temporary land permits, the Chief Minister can give temporary permits from one year to 99 years. At present about 600,000 families in the country live on temporary permits. Due to the rapid development in the other areas, lands are available in North East and North Central. If you categorise the land in North and North East for the Tamils, a national land policy cannot be implemented.

Two points of the issues we have raised were recognised by the President and it has been incorporated in a Cabinet paper. We fully support that move by the Government but the other three core issues must also be addressed. Then we will like to compromise, if not there will be a very serious law and order situation.

We further request that before the election the government must restore the demographic balance in the Northern province. Nearly 21,000 Sinhalese were living in the Northern province in 1971, now it has come down to 674. In 1971, only 79,000 Tamil people were in Colombo, it has shot up to 236,000 by today. The simple message is that Tamil people can settle here but Sinhalese have been chased out. That should be restored before the election.

Q: Don’t you think that your call will strengthen the forces that legitimise the secessionist move?

A: People argued that when the 13th Amendment was introduced, armed men were going to lay down their arms and that when the powers are devolved, the Tamil leadership in the North will be strengthened. But nothing of the sort happened. These extremist Tamil leaders could not be changed or satisfied. Moderate Tamil voice has been suppressed by these racist elements.

How did we finally eliminate Prabakaran?, by the determination of our heroic forces and the leadership.There was no devolution formula used there. Some argue that in 1987 after the peace accord, the EPDP, TELO and PLOT laid down arms. That is an illusion, the Peace accord was signed in July 1987 but in December 1986, all these organisations were disarmed by the LTTE. Sri Sabharatnam was killed, Uma Maheswaran was killed, Prabakaran eliminated those people. By the time the agreement was singed they were already disarmed!

Let the development and the reconciliation take its course. The TNA and India is trying to unsettle the country due to various reasons. We will not allow them to succeed this time.

Q: You call for a total abolition of the 13th Amendment. Then what should be the Government’s devolution path?

A: We are for decentralisation, and devolving power to the grassroots, to the ‘Jana Sabhas’ which are stipulated in the Mahinda Chinthana. I like to reiterate that we are open for discussion with any party even the TNA.

We agree with those who argue that if the other eight provinces have provincial councils then the North should also have their own. That is why we want to do away with the 13th Amendment in toto. The problem with Northern Province is that a Neo-Nazi movement is striving to capture power in the council and revive their secessionist movement.

Q: JHU is one of the strong coalition partners in the UPFA government. Have you put the government in a difficult situation?

A: No. If the UPFA Government go for elections in the Northern province without heeding to our concerns, they will create ground for unrest and instability.

Those who devolve power to the Prabakaran’s followers will be betraying the ultimate sacrifice by 26,000 soldiers. We will not allow anyone to undermine this sacrifice.

Q: But other UPFA partners like the LSSP, Communist Party as well as individual members have voiced support for the 13th Amendment?

A: They have a right to do that. But the people have rejected these ideas.The Government has reiterated its support for a unitary state not a federal state. We welcome the UNPs recent stance to accept the unitary character of this country.

Q: Do you support holding the Northern province election in September?

A: No. Before that the core issues that we have raised must be addressed. We must restore the demographic balance or enact legislature to give displaced people voting rights.

Q: If the TNA is elected to Northern PC, will you support them?

A: There are reports that TNA is not going to contest and some other independent group will contest instead. Whether it is independent or TNA, the important thing is their ideology, if it is governed by the Global Tamil Forum, Trans National government or the racist politicians in Tamil Nadu, then it will ignite more problems.

Peace loving Tamil people must decide if they want to continue in Prabakaran’s path where their future generations will be destroyed, or simply harmonise with the Sinhalese and Muslim communities and move forward.