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13th Amendment is not protection for the rights of the minorities: GL

2013 Jul 12

Q: The international community has been pressing Sri Lanka for a political solution to the ethnic issue and the 13th Amendment has been seen as one of the key facets to such a solution. Therefore what impact will the government’s attempt to curtail the powers of the Provincial Councils have on Sri Lanka’s relationship with the international community? Especially with regard to the Commonwealth Heads of Government Meeting that is scheduled to be held at the end of the year?
I don’t think there is necessarily a connection between the two. One needs to remember the character of the Commonwealth which is a voluntary association of sovereign states, and one of the hallmarks of the Commonwealth is diversity of cultures, approaches, and policies. Therefore countries are free to pursue their own initiatives, with regard to national policies. The whole idea of the Commonwealth is entirely inconsistent with the idea of some countries sitting in judgment with other countries. This is what I have said in many international forums, where the argument has been put forward that the Commonwealth, if it is to survive, will have to adapt itself to changing circumstances. Of course that is true of any institution, it will perish unless it adapts. This was seen in the work of the Imminent Persons Group.  However what I have consistently said is that under the guise of adaptation, one cannot distort the fundamental nature of the Commonwealth. If one travels down that road, there is a serious threat of harm being inflicted on the Commonwealth.
Therefore as far as the 13th Amendment is concerned it is entirely a domestic matter for Sri Lanka and what is entirely obvious from the coverage in the media of the last few weeks is the diversity of opinion, on this issue. What is needed is an objective, dispassionate analysis of the issues,
After all it has been a quarter of a century since the 13th Amendment was enacted, and this is why the government has proposed a Parliamentary Select Committee to address these issues in a manner that is acceptable. Therefore this has no bearing whatsoever on the hosting of the CHOGM at the end of this year.

Q: One of the core principles of the Commonwealth is good governance in member countries;  the international community has viewed the 13th Amendment as a piece of legislation which would promote good governance through rights of the minorities, therefore reviewing it or making changes to it would betray this principle of the Commonwealth?
That would suggest that Sri Lanka did not have good governance before the 13th Amendment. However we have a tradition that we are proud of, which is good governance—and this goes back to a period even before independence. We have had varying structures of governance that have promoted good governance.
On the subject of minority rights, these are enshrined in Sri Lanka’s Constitution and there are different modalities for protecting minority rights. The 13th Amendment, basically demarcates a line between the functions of the central government and the provinces. One must forget the fact that in Sri Lanka the majority of Tamil speaking people live outside the Northern and Eastern Provinces and they live among the other communities in the other parts of the countries. The 13th Amendment does nothing to address the concerns of those minorities. It is therefore a cardinal error to identify the 13th Amendment as protections for the rights of the minorities, which is a misconception.

Q. The government has made a commitment to the international community to hold the Northern Provincial Council elections in September, due to the resolution passed against Sri Lanka at two sessions of the United Nations Human Rights Council. Clearly this is an indication of the importance the international community places on the Provincial Council process. Therefore how can you argue that the government’s attempt to alter the Provincial Council system is not going to have any bearing on its relationship with the international community?
The commitment is to hold the Provincial Council Elections in the North, that is all. The UNHRC in Geneva has no authority legal or moral to interfere in the powers of a sovereign parliament, but the resolution does not attempt to do that. Nowhere in the resolution is there a prescription given to the legislature. The elections have to be held in the North, but Parliament, in its wisdom must decide what is right for this country and that cannot be affected by what any foreign body expects.

Q: If Parliament will ultimately decide on whether the Provincial Councils should be in existence or not, then why hold the elections in the first place? If the Provincial Council system is no longer going to be in place, then what meaning does the government’s commitment to hold the election have?
People vote under a certain set of rules. However when a government comes into power those rules can be changed. This is true in the sense of the Northern Provincial Council and even a parliamentary election.

Q: How will the government manage the relationship with India, considering their stance on the 13th Amendment?
There has been recognition from both sides, that this is a very important relationship. Although there would be differences in the relationship from time to time, this is natural in any relationship; between countries or even families. There will be issues, but one of the essential features from both sides is the need to resolve issues when they arise and deal with them rationally with discussion. Further there is an agreement to ensure that the relationship does not spiral out of control.

Q: Spiral out of control, meaning one party having greater influence over the other?
No, to ensure that it is not put in jeopardy. There are domestic compulsions both in Sri Lanka and India; that is a matter of practical politics, especially when elections are around the corner. This is to do with domestic political interests, which are obviously an important part of the equation. It is not a criticism on anyone, but a reality that everyone must come to terms with.

Q: The Indian government has not been vacillating on what it wants for the provincial councils, they have categorically said that 13+ is the best solution and President Rajapaksa, in the past, promised this to the Indian government. Therefore what is the primary message the government is now conveying to India?
We have to take stock of the situation on the ground, 25 years after the 13th Amendment was enacted. We have to consider in light of that experience, whether the 13th Amendment should be implemented without changing one comma or full stop or whether it requires some modification, in light of the circumstances.

There has been one consideration that has not been sufficiently explained. In the past 25 years no government has been able to implement the 13th Amendment fully or substantially. The reason is the lack of public support.
In the Daily Mirror Poll that has been carried out, it shows that 53 per-cent of those polled wanted the 13th Amendment to be abolished. This is a reflection of the thoughts of the English speaking community in Colombo, if this was taken out to the rural areas there would be a rejection of the 13th Amendment with a far greater majority.

Q: How can the Parliamentary Select Committee have any credibility, when the only members within it are those of the government? That too excluding the SLMC.
The government cannot control the actions of parties within the opposition, but it is the government’s duty to provide a forum in which all parties can freely participate and make an input into the process. For at least a year the government was ready,  the terms of reference were ready and had identified the members and there was in fact discussions on the terms of reference with the TNA.
However it would be irresponsible of the government to wait indefinitely for the parties in the opposition to join. This is not a matter that can be put off for a long period, without any indication of a time line. The PSC process is being initiated and it is an all inclusive process they should use to express their views. We would like them to join us at any time during the process, but we will go ahead and start the process without them.
 
Q: How is it an all inclusive process if the opposition and the minority party representatives don’t participate?
The alternative is to do nothing; is that attractive? The government can’t control the opposition, therefore what can the government do. We can’t say that just because they are not coming, we can do nothing.
 
Q: You have always argued for Devolution, especially during the time of former President Kumaratunga. What is your stance now, on the 13th Amendment?
I have always said that the 13th Amendment needs reform, what kind of reform is a matter that needs to be decided on the circumstances that prevail at any particular time. An assessment in this regard, has to take into account the developments that took place over the past 25 years. No view is cast in stone, and we must realise that a lot of water has flowed under the bridge. Today we have considerable experience of the functioning of the PC system on the ground and these experiences have to be taken into account when reforming the system.

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