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The fundamentally flawed 13th Amendment
Veteran Civil Servant Desamanya Bradman Weerakoon, who served as secretary for nine state leaders, talks to The Nation about the conception of the 13th Amendment, the psyche of its creators, how it was responded to and the shortcomings of the solution that was given to the ethnic problem
By Dinidu De Alwis

Following are the excerpts:
Q: How have you observed the creation of the 13th Amendment?
I have watched it from the inception and the way it has operated. I find the intention of those who framed the 13th Amendment, which was based on what was happening around, has not been fulfilled.
In a way what we have is a kind of a distortion of the whole process and the whole intention of what was meant.
If you go back to the reasons for the 13th Amendment and the fact that it was to do with the ethnic crisis at the time, and the fact that India had come in as a mediator to try and see a way out, one of their solutions was devolution of power.
Devolution of power had to be in such a way, there had to be – for an area – that in the province there would be some kind of power given to local area representatives to handle their affairs, whatever those affairs were going to be.
But it meant radical change from an earlier position of a highly centralised state that Sri Lanka was. It was an event of major significance that was going to change the whole way in which power was to be exercised.

Q: How did the devolution of power play into the issues that were prevalent in the North and East at the time?
There were going to be central powers and there were also going to be devolved powers. Devolved powers were going to be on the basis of the area which was the province. They talked about the district, they talked about the provinces and finally it was the province.
And in the case of the North and the East, there was the option for any two provinces that felt like doing so could get together to form a larger unit. So they were thinking of the larger unit, not the smaller unit.
The subsidiary principal was also being taken into account, that things are better closer to the ground. But over and above that, was the feeling that this would in some way satisfy the aspirations of an ethnic community who had felt that they needed some additional machinery to run their affairs in certain areas different from the central government.
So it was a direct concession to that ethnic request for power sharing. Not power sharing at the top but power sharing at a territorial level. That was the intention, no doubt about it.
Q: Was it perceived as a complete solution for the issue at the time?
All those who saw it at that time and all those who felt about it at that time, believed the 13th Amendment as one of the solutions. And it was one of the ways in which the aspirations or fears or claims of the Tamil people in areas which they regarded as theirs in a sense historically Tamil habitation going on the demographic reality, could be fulfilled.
What really happened with the 13th Amendment was a way in which the Jayawardena government was trying to address this problem. But soon after it was conceived, it was also felt that there will be a major difficulty for the unitary state, which by that time had assumed a certain momentum of its own where all power was really centralised in the central government and whatever other powers that were being given were local government powers.
Municipality, Urban Council, Town Council, and Village Council, which were kinds of power, again on the principle of subsidiarity, were able to do some things but not the major areas like education, culture, land use and things like that.
There was a compromise right from the beginning in the 13th Amendment on how do you compromise between need for devolution of power and the giving of some power to an area and the principle of central control or central direction.
And it has happened right through the devolutions like with Dudley Senanayake. All of them had the question of how do you preserve central power. And the way they seemed to have achieved that when the act went into play was to build this contradiction into the legislation.
That itself made many people feel that the legislation itself was fundamentally flawed in the fact that the two principles were contradicting, in the institutional forms that were set up.That became very clear.

Q: How would you see the concurrent list and the sharing of powers work?
Having powers for the devolved area and having powers for the centre, and you had powers that could be exercised by either body: there was this vagueness about it to preserve the unitary state.
And we had in the Constitution that particular entrenched clause that said Sri Lanka shall be a unitary state. So there was a legal problem of how you were going to get over that by having something subsidiary, which had almost equal power – it had subsidiary powers but not equal powers.
It’s a very difficult contradiction.
This was brilliantly said by none other than Prof. G. L. Pieris who then was not in Parliament at all, who described it as being fundamentally flawed.
“Fundamentally flawed” at that time stuck in my mind as being a very cogent way of explaining that. The problems that might later come up and how to resolve these things.
In fact it did straightaway, because what they attempted to do in one hand they were giving to the central power. And that was done through the mechanism of the concurrent powers – a list of powers which could be shared. And very often the government became the one which took back the power, or parts of it were taken away.
If you take education the major schools were taken back. They took the health out and took the major hospitals back into the central government. So the whole thing became a give and take. Give from one hand and take from the other.
That was one, the other was the whole provision about national policy. Wherever in the interest of national policy, the power needs to be held by the center and can be not taken by the devolved power.
The third most important thing I think is the financial provisions. One of the objectives of devolving power has always been that the devolved power must have the means to implement that things that it has to do. What this means is the power of controlling the taxation. That taxation cannot be income tax, but some kind of tax so the provincial government can do its own things.
But in that too, there was a big block. As far as the finances were controlled by the state which had decided that there would be allocation but these were very limited, and there was no basis on the allocation. There was for example, no set allocation from the central budget. It didn’t say anything like “30% would be allocated among the provinces” – it didn’t say anything like that. There was no specific allocation and it depended on whether the treasury could give or not – it was quite arbitrary.
It was possible for the center to limit the amount of power through the amount of finances that were given.
Those three were very important – concurrent powers, national policy and power over finances.

Q: What were the repercussions of the restrictions and the emphasis on the centre?
Now the history of it was also very interesting that where the devolution principle was going to be most needed – most important to resolve the ethnic aspirations, it didn’t work as far as the provincial councils were concerned in the North and Eastern province earlier.
In the North and the East under the Varadharajah government – which was the first provincial government that took place under the 13th Amendment – they found it so difficult to handle the lack of authority that it even went to the extent of saying it was going to unilaterally secede.
It became an indication of the frustration and the impossibility of a mechanism – which had been given but had not been fully implemented. And the justification on the side of government at the time was simply “Well, we don’t trust you to give you power. We don’t know what might happen. You might move further from devolution into separation.”
The separation issue was there, and the Indian interventions were also there, and people were saying all kinds of things. And these were sending signals to the Sri Lanka government at that time to say “That’s all and nothing more.”
Amendments were made which allowed the government to dissolve the provincial councils. Earlier the provincial councils could only be dissolved through the actual majority in that provincial council after the chief minister of the provincial council made a request for dissolution.