The 13th Amendment: Is It The Best Model To Share Power?

By Dinesh D. Dodamgoda

Dinesh Dodamgoda

As soon as Mr. Maithripala Sirisena became the President of Sri Lanka, the Tamil National Alliance (TNA) and the British Tamil Forum (BTF) issued statements and reminded President-elect the need to “urgently” address the minority’s concerns. BTFstated that only a political solution recognising the right to self-determination of the Tamil nation in Sri Lanka can address core issues of autonomy to the Tamil people,de-militarisation of the Tamil areas and cooperation with the UNHRS’s international inquiry.

The TNA and the BTF statements indicate a solution that aims at sharing power on the basis of the principle of “territoriality”. Territoriality uses geographical areas to create and administer autonomous regions. The principle of territorial power sharing was initially recommended as a second tier of government by the Donoughmore Commissioners in 1928. However, it was recommended not to address Tamil nationalist concerns, yet to bring structural changes to the constitution to reduce the level of centralisation that the British rulers used in order to consolidate the power of the colonial state.

Territoriality in SL

The principle of territoriality was adopted to guide negotiations on power-sharing between the Centre and the ‘national areas’ of the Tamils by the Federal party (FP) in the mid-1950s to claim ‘separate historical past’ of the Tamils that the FP claimed. After several unsuccessful attempts in 1957, 1960 and 1964-65, a second tier of government was adopted by the introduction of District Councils in 1981 as a result of negotiations between the United National Party (UNP) government and the Tamil United Liberation Front (TULF), the successor of the FP.

After the riots in 1983, the TULF and the Indian government insisted in abandoning the District Council system in order to bring a larger administrative system, the provincial councils in 1987. The Provincial Council system was adopted and incorporated as the 13th amendment to the Sri Lankan constitution of 1978 as a result of pressure from the Indian government. The provincial councils were modelled on the power of the states of the Indian Union, yet preserved the Sri Lankan unitary system.

Wrong Principle

The principle of territoriality as a type of ‘partitioned decisionmaking’ in sharing power was not the best principle to divide the centre and the local in Sri Lanka at least for the following reasons:

Territoriality is only a proxy for ethnic Tamils, yet extends its effects to other ethnic groups residing in the Northern and the Eastern provinces. According to 2001 (provisional) census of the Department of Census and Statistics, 70.7 percent of Indian Tamils, 16.9 percent of Muslims (Moor), 11.2 percent of Sinhalese residing in the Northern and the Eastern provinces of Sri Lanka (Jaffna, Mannar, Vavuniya, Mulathivu, Killinochchi, Batticaloa, Amapara and Trincomalee Districts) with 1.2 percent of other ethnic groups. Hence, it is evident that the principle of territoriality is only a proxy for ethnic Tamils, yet not a fair principle for 29.3 percent of the non-Tamils residing in the Northern and the Eastern provinces of Sri Lanka.

Territorial power sharing receives wider opposition from the majority Sinhalese and the Muslims. Especially, majority Sinhalese view devolution of power as the first step in creating separate areas for Tamils in the North and the East.

Furthermore, majority Sinhalese think that the territorial power sharing mechanism will threaten the territorial integrity of the state. Even today, the centre is reluctant to release land and the police powers to the provincial councils.

Hence, it is practically impossible to reach a consensus between different ethnic groups even to fully implement the 13th amendment to the constitution. Therefore, it is hard to assume that the principle of territoriality will deliver a long lasting solution to the Ethnic issue in Sri Lanka.

Finally, other appropriate principles exist in addressing power sharing issues in Sri Lanka in addition to ‘territorial power sharing’ principle. Therefore, it is a pity that the architectures of Sri Lankan power sharing models did not even try to test other principles in power sharing and kept blindly believing in the principle of territoriality for decades without questioning its validity in terms of finding a lasting solution to the ethnic issue in the Sri Lanka.

Power Sharing Mechanisms

Different mechanism can be adopted when initiating the transition from civil wars in terms of sharing power. Amongst them are central power sharing, territorial power sharing, military power sharing and economic power sharing mechanisms. The central power sharing mechanism distributes executive political power in the core governing institutions in the central government among different ethnic groups.

As noted previously, the territorial power sharing mechanism decentralises power by sharing power with different geographical areas. The military power sharing mechanism integrates different ethnic groups to the military by changing the ethnic composition of the military. The economic power sharing mechanism tries to address issues related distributive justice as well as issues related to control of economic resources.

Central Power Sharing

According to a recent study by Matthew Hoddie (Texas A&M University) and Caroline Hartzell (Gettysburg College) that examined 38 post civil war peace settlements reached between 1945 and 1998, 30 out of 38 peace agreements, or 79 percent of the total, included provisions for ‘central’ power sharing.

The ‘central power sharing’ mechanism shares or divides political power in the central government among ethnic groups in at least three different ways. First, by adopting the principle of electoral proportional representation (PR system) or similar system. So, different ethnic groups can elect their representative to the legislature of the central government.

Second, different ethnic groups will agree to proportionally allocate decision and policy making power to positions in courts, commissions, the civil and foreign services, and other corresponding offices.

Third, different ethnic groups are guaranteed that in the executive of the national government the power will be shared proportionately when giving ministerial, sub-ministerial, and cabinet positions.

Appropriate Mechanisms

Despite its forceful adaptation in the past, the territorial power sharing mechanism has proved futile in reaching consensus amongst different ethnic groups in Sri Lanka in finding a sustainable solution.

However, in contrast to the territorial mechanism, central power sharing mechanism will either neutralise or at least reduce the majority Sinhalese opposition to share power with minorities as the mechanism will not threaten the territorial integrity of the state and as such will reduce the fear of secession.

Furthermore, central power sharing mechanism will guarantee rights and powers of all ethnic groups according to the principle of proportionality. Moreover, the mechanism has been more common (79 percent) in civil war settlements than other types of power sharing mechanisms, namely territorial, military and economic power sharing mechanisms, thus, proven to be successful.

Therefore, central power sharing mechanism is more appropriate and less controversial than the already adopted territorial power sharing mechanism in Sri Lanka. However, the central power sharing mechanism should be coupled with a partitioned decisionmaking power sharing principle that extends its jurisdiction only to members of a particular ethnic group and not to all residents within the territory.

The principle is called Ethnocorporatism that creates such institutions as communal legislative chambers that adopt separate policies for their respective ethnic groups or communal bureaucratic administrations, such as separate school systems for different ethnic groups residing in the same District or Province. Therefore, the principle will be welcomed by Sinhalese, Muslims, Indian Tamils and others residing in the other areas of the country as well.

The principle of Ethnocorporatism was successfully adopted even in the Ottoman Empire to grant autonomy to non-Muslim communities. Unlike the principle of territorial power sharing, Ethnocorporatism will not threaten the territorial integrity of a country. Moreover, the military and economic power sharing mechanisms also can come into play with central power sharing mechanism and Ethnocorporatism in finding an appropriate solution in sharing power between the centre and different ethnic groups in Sri Lanka.

The way forward

Hence, the time has come to question the traditional wisdom that promotes the principle of ‘territorial’ power sharing in finding a sustainable solution to the ethnic issue in Sri Lanka. However, the President Maithripala Sirisena’s government needs to initiate a much wider discourse to evaluate all the available power sharing principles and mechanisms before succumb to group pressures that promote territorial autonomy for the Tamils residing in North-Eastern Sri Lanka.

*Dinesh D. Dodamgoda, a Fulbright scholar and a lawyer, has a M.Sc. degree from the British Royal Military College of Science, Shrivenham (Cranfield University) on Defence Management and Global Security. He was also an MP from 1995-2000