A Sri Lankan Supreme Court judgment on devolution of land powers underlines the 13th Amendment’s shortcomings to keep in check central intrusion into provincial governance

The timing of a judgment by Sri Lanka’s Supreme Court recently on devolution of land powers — just two days after a historic election for the Northern Provincial Council — is of great significance.

Inevitably, the focus has shifted to the Tamil National Alliance (TNA) and how the party — and the Provincial Council it controls — would respond to the judgment.

The political implications of the judgment are clear. The Thirteenth Amendment was introduced pursuant to the settlement of an international treaty by India and Sri Lanka providing a limited measure of devolution to Provincial Councils. The Amendment has always been understood by politicians, civil servants, lawyers, judges and the international community to devolve land powers to the Provincial Councils. Various circulars issued by the Ministry of Land and Land Development attest to the fact that the devolution of land was never in doubt. This view was strengthened by a number of judgments of the Court of Appeal and Supreme Court.

Now, in a sudden instant, the Supreme Court tells us that these powers were in fact never devolved; that the way in which the Thirteenth Amendment has been understood for 25 years was erroneous; that the Thirteenth Amendment only meant for the Province to administer whatever land the Centre — in its beneficence — thought fit to give away.

Timing

The timing of the judgment is critical. The fact that it came two days after the historic election for the Northern Provincial Council where the people overwhelmingly voted for devolution and self-governance, but before the Council became functional, has received much comment. More critically however, the judgment arrives at a juncture where the government has explicitly committed to denying the Northern Provincial Council constitutionally mandated powers over land and law and order. The government has now constituted a Parliamentary Select Committee — composed primarily of members opposed to any meaningful devolution — ostensibly to recommend a further weakening of devolution. The arrival of this judgment may be perceived by the government as easing its own burden and enabling it to hide behind a judgment of the Supreme Court. The government should be clearly told that this position is untenable and that it has a duty to make good on its promises of extensive devolution made to India and the international community.

No bulwark

The recent judgment offers the clearest proof yet that the Thirteenth Amendment does not provide any measure of meaningful checks on central intrusion into provincial governance. It points directly to the Amendment’s inadequacies. To its capacity to be abused and the fickleness of the devolution of the very subjects it was intended to devolve. Moreover, the judgment unequivocally demonstrates the inherent problem of devolution within a unitary state — the threat of the unilateral rollback. That the government was for four years unwilling to implement even these weak provisions on devolution is a testament to the centralising mindset of the regime and its inability to even contemplate meaningful sharing of powers. Clearly, it only delivers when pushed.

Now, it needs to be pressured even more. For those who acknowledge the need for devolution but believe the Thirteenth Amendment is sufficient, the Supreme Court’s judgment must provoke a rethink. How can one support devolution within the parameters of the Thirteenth Amendment when those parameters are constantly shifting? When there are no checks and balances to prevent a wholesale centralisation — whether through executive control, legislative changes or judicial fiat — of what was previously known to be devolved?

For uninhibited change

In 2006, the Supreme Court ruled against the merger of the Northern and Eastern Provinces on the instance of an extremist faction within the Sinhala community. The merger was a critical component of the India-Sri Lanka Accord in that it sought to protect Tamils’ right to self-governance in the face of orchestrated demographic change. Now, attempts are made to gut provisions on devolution of land in an almost identical fashion, so as to enable uninhibited demographic change in the North and East.

Mr. Gomin Dayasiri, who appeared before the Supreme Court in the instant case, now publicly exults in what he deems is a trick played on India by former President J.R. Jayawardene who approved a constitutional text which appeared to devolve land, but has now been interpreted to do the opposite.

The Supreme Court’s judgment reminds us that devolution can never be meaningful and permanent within the asphyxiating confines of a unitary state. The urgent need is for meaningful constitutional reform so that devolution can be made more secure, the rule of law protected, and the judiciary made independent. The steady erosion of minority protections in the India-Sri Lanka Accord through judicial pronouncements can only be reversed by a permanent political solution and a new constitutional order. Moderate Tamil leaders have articulated this message for more than 60 years. If people within and outside Sri Lanka didn’t believe us then, they should, and will, believe us now.

(M.A. Sumanthiran is a Tamil National Alliance Member of Parliament.)

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