Dr P. Sarawanamuthu
The Centre for Policy Alternatives (CPA) is deeply perturbed by recent media reports that the government is planning on amending several provisions of the Thirteenth Amendment to the constitution.
Over the past several weeks there were contradictory statements made by senior MPs of the United Peoples Freedom Alliance (UPFA) as to whether discussions are under way to amend the constitution. However, all such reports were denied by the (acting) cabinet spokesperson who at the weekly cabinet news briefing whilst purporting to represent the official position of the government stated that;
“The President expressly said a Parliamentary Select Committee consisting of all the political parties can discuss if there will be any changes to the present Constitution, especially to the 13th Amendment. In that scenario, no steps have been taken to change the status quo.”
However several media organizations reported this morning that the government is to propose amendments to several provisions of the Thirteenth Amendment and that these amendments will be introduced in the form of an urgent bill.
The proposed amendment reportedly includes:
Removing the safeguards in Article 154(G)(3) of the constitution to permit the centre to pass legislation in relation to subjects in the Provincial Council List by a simple majority provided that a majority of PCs agree to the said legislation.
Repeal Article 154(A)(3) which allows Parliament to provide for two or three adjoining provinces to form one administrative unit.
In these circumstances CPA is compelled to raise the following concerns in relation to the proposed amendments as indicated by several news reports.
Process of Constitutional Amendment
A constitution derives the moral authority to bind all citizens only if it is a result of a consultative process which takes into consideration all perspectives in a plural society. The proposed amendments have far reaching implications both in terms of preserving democratic values and achieving post-war reconciliation. As such it is highly disconcerting that the proposed amendment is a result of a process that was shrouded in secrecy and only limited to some constituent elements of the UPFA government. CPA has critiqued the lack of transparency and public participation in the law making process – the process that formulates constitutional amendments and broad sweeping legislation –since its inception. However despite promises– including the proposals of the present government in terms of its ‘National Human Rights Action Plan’ – successive governments have exploited these deficiencies in the law making process and have not demonstrated any willingness to remedy these failings.
The incumbent government has repeatedly adopted the process of classifying constitutional amendments as ‘urgent bills’ and thereby further limited the existing space for public debate and judicial scrutiny. Considering the serious and irreversible impact the present amendment would have on the post-war reconciliation process. CPA strongly urges the government that in the event they do propose legislation amending the Thirteenth Amendment to the constitution, they desist from adopting the proposed urgent bill procedure.
Amendments to the Thirteenth Amendment
CPA has repeatedly critiqued the Thirteenth Amendment as being inadequate in devolving power to the Provinces. The Thirteenth Amendment is replete with provisions which weigh the balance of power in favour of the centre. Considering the weaknesses of the Thirteenth Amendment, all subsequent power sharing proposals – from the Mangala Moonesinghe Committee proposals to the Majority Report of the All Party Representatives Committee – in initiatives under successive governments, have reiterated the need to move beyond the provisions of the Thirteenth Amendment.
Article 154(G)(3) is a safeguard built into the provisions of the Constitution to prevent the central government from legislating on subjects allocated to the Provincial Councils (PCs) without first obtaining the consent of all PCs. In the event where one or more PC does not consent to a proposed bill, the central government has the option to either pass the bill by a simple majority, in which event the bill will become law applicable only to the Provinces for which the PCs agreed to the bill, or to do so by a two thirds majority in which case the bill will become law applicable to the entire country. Removing this safeguard will render the Thirteenth Amendment worthless as a mechanism to devolve legislative power, as the central government at any given time could take away any or all powers vested in the PCs by passing legislation with a simple majority.
This unilateral act by the government to completely negate the existing devolutionary framework would be an historical mistake. The specific proposals to amend the Thirteenth Amendment betray the government’s inability to comprehend the historical roots of the ethnic conflict in Sri Lanka, and its inability to learn lessons from similar mistakes made by past governments. Moreover it casts serious aspersions on the government’s good faith in formulating a political solution acceptable to all communities. The Thirteenth Amendment– being part of the existing constitution that must be fully implemented – represents the absolute minimum basis on which a process of constitutional negotiations towards a new power-sharing settlement may be initiated, in order to effect the transition in Sri Lanka from the post-war to a post-conflict phase.
CPA further states that such a unilateral act would amount to a violation of specific undertakings of the present government to the international community that it would work to formulate a political solution acceptable to all communities, and specifically to the undertakings given to the government of India that any future political solution would go beyond the framework of the Thirteenth Amendment. Regardless of these statements of intent, the government has demonstrated no credible commitment to negotiating a post-war power-sharing settlement.
Therefore CPA strongly urges the government to not proceed with the proposed constitutional amendment and to recommence an inclusive dialogue with a view to developing a consensus amongst all major stakeholders on a political solution acceptable to all communities.