North: To poll or not to poll?

The prospect of elections for the Northern Provincial Council by September 2013, now a Sri Lankan Government promise cemented in a UN Human Rights Council Resolution on the country, became just a little more remote last week after members of the main Tamil party and civil society activists in the north called for the setting up of an interim administration in the province overseen by India or the US until the Government comes up with a permanent political solution to address Tamil concerns.

The appeal, made to a visiting Indian Parliamentary delegation in Jaffna, comes in the wake of calls for the abolishment of the 13th Amendment, which devolves some power from the central Government to provincial authorities, from the ruling regime’s most powerful official no less.

Quasi-federal in nature, the 13th Amendment to the Constitution designed by New Delhi in 1987 in an attempt to resolve the separatist conflict in the island, devolved some powers to councils manned by provincial representatives, including education, health, housing and rural development.Dharisha

In the post-war reconciliation discourse and as per promises made to the international community including India by President Mahinda Rajapaksa, the provincial council system set up by the 13th Amendment was to be the basis of a permanent power-sharing arrangement with the Tamil community. The provincial system set up by the 13th Amendment to the Constitution has been implemented in every province today, with the exception of the north.

Premachandran and the delegation

The Indian Parliamentary delegation visiting Sri Lanka met with Economic Development Minister Basil Rajapaksa at his Ministry on 11 April and went on to inspect Indian-funded housing and other projects in the north during their visit. The Parliamentary delegation, comprising Saugata Roy, Prakash Javedkar, Anurug Thakur, Sandeep Dixshit, Dhanajay Singh and Madhu Goud Yaskhi representing the Bharathiya Janatha Party, Indian People’s Congress, Bahujana Samaj Party and Indian National Congress reportedly expressed its satisfaction with Sri Lanka’s post-war economic progress so far.

During their visit to the north, the six-member Indian Parliamentary delegation, which concluded its visit to the island last Friday (12), was informed by TNA President Suresh Premachandran that there was “ongoing genocide” of Tamils in Sri Lanka, according to a report in The Hindu newspaper. Premachandran told the multi-party delegation from India that the Tamils needed an “interim administration, overseen by India or the United Nations, until there is a final political settlement for the Tamils”.

The sentiments were echoed by Tamil civil society activists, who said that a transitional administration model, for which there is no constitutional provision at the moment, would provide Tamil representatives actual power in areas such as education, health and livelihood issues. The civil society members proposed that the central Government should also have a role in this system. The activists were responding to questions from the visiting Indian Parliamentarians as to whether the Northern Provincial Council elections scheduled for September 2013 would provide a window of opportunity for Tamil political aspirations to be met.

For nearly a decade, the words ‘interim administration’ have earned a dubious reputation in Sri Lanka.

The phrase evokes memories of the breakdown in the Balasingham-Peiris peace talks in 2003, after the LTTE demanded the setting up of an “Interim Self Governing Authority (ISGA)” for the north and east. Talks between the LTTE and the Ranil Wickremesinghe Government were suspended in April 2003 over disagreement over the ISGA and never really took off again, despite two more rounds being held in Geneva under the Rajapaksa Government in 2006.

Transitional Government

The LTTE’s ISGA proposals were aimed at setting up a transitional Government in the north and east, until a final negotiated settlement was reached. The Tigers’ proposals gave the interim administration authority over the rule of law, rehabilitation, development, revenue and expenditure, internal and external borrowing and taxation. They called for the removal of the armed forces from all land occupied in the north and east and demanded jurisdiction over all administrative structures and personnel stationed in the north and east.

The LTTE would appoint the Government to begin with, the tabled proposals said, and within five years, if no final settlement was reached and implemented between the Government and the LTTE, democratic elections would be held to formalise the separate administration. The move was seen as a thinly-veiled attempt to formally legitimise the LTTE’s de facto administration in territories controlled by them in the north and east. The proposals would in fact, widen the Tigers’ reach, since the proposed transitional government would encompass both provinces in entirely, including the areas then still under Government control.

Although welcomed by some sections of the international donor community, including the US and EU, the proposals as they stood were a non-starter locally. Political parties, including the ruling United National Front Government, saw the ISGA as a threat to Sri Lanka’s sovereignty and territorial integrity, with the Tigers controlling two large provinces in the island, which would effectively give the central Government in Colombo very little say over affairs in the regions. With the regions still under the jackboot of the armed LTTE leadership, the ISGA proposals raised the very real spectre of a Unilateral Declaration of Independence in the north and east if the mechanism was ever implemented.

End of cohabitation

The ISGA provided the fodder President Chandrika Kumaratunga needed to wrest control of the Government controlled by her political opponent. Ably assisted by the JVP, Kumaratunga finally ended a shaky cohabitation with Wickremesinghe, the first the country had ever seen since the establishment of the executive presidential system in 1978, with the presidency and Parliament being controlled by separate political parties.

According to UNP insiders, Wickremesinghe later declined to provide an assurance to the LTTE ahead of the presidential poll in 2005 that he would implement the ISGA under his administration. The move likely cost him the presidency after the Tigers enforced a boycott of vote in the north and east, providing his opponent Mahinda Rajapaksa with a thin majority that seated him in executive office instead. Interim administration proposals have ripple effects in the country’s south, where it translates almost directly as ‘separate state’ and prompts hardline nationalist politicians – many of whom are constituents in the ruling administration – baying for blood.

Ten years after the ISGA first made an appearance, the TNA President’s recent call for an interim administration will similarly galvanise sections of the south that are already raging against the full implementation of the 13th Amendment, beginning with the holding of the Northern Provincial Council poll by September this year.

Gota leads the charge

Leading the charge for the abolition of the 13th is Defence Secretary Gotabaya Rajapaksa, easily the regime’s most powerful official.

Meeting with the Indian delegation on Thursday (11), the Defence Secretary rubbished Premachandran’s assertions and insisted that there would “never be a separate system of governance for the Northern and Eastern Provinces”. He pooh-poohed TNA claims that new Army garrisons were being created in the two provinces and claimed the Tamil Party had done nothing for the Tamil people since the end of the war. Rajapaksa claimed minorities would be uncomfortable in any country and that it was not a phenomenon unique to Sri Lanka. He provided assurances to the delegation that the Government would not discriminate against any ethnic group in the country.

The reaction was predictable. But the TNA position further reinforces the Defence Secretary’s stand on the 13th Amendment. Since late last year, as calls for a northern election intensified both in New Delhi and in other crucial world capitals, the regime commenced a wholly contradictory campaign aimed at abolishing the provincial council system altogether. The Secretary of Defence has repeatedly referred to the system as a national security threat and an alternative way for the LTTE rump to achieve its goal of a separate state.

Another warning

Last month, even as New Delhi burned over Sri Lanka’s case at the UNHRC in Geneva and Tamil Nadu politicians held the Indian central government to ransom over the plight of the Tamils in the island, Gotabaya Rajapaksa sounded another warning about the dangers hidden in the 13th Amendment.

“The ongoing crisis in the Southern Indian State of Tamil Nadu, over accountability issues here, should discourage those pushing for devolution of power under the 13th Amendment to the Constitution. A hostile provincial council administration in the Northern or the Eastern Province in Sri Lanka could be inimical to the post war national reconciliation process,” he told a local daily newspaper in late March.

The threat of repeal

So serious are the abolishment threats emanating from the highest echelons of the regime that Housing Minister Wimal Weerawansa filed a motion in the Supreme Court late last year, petitioning for the 13th Amendment’s repeal. Because it was filed amidst the impeachment imbroglio that saw Sri Lanka’s 43rd Chief Justice Shirani Bandaranayake sacked from office, the case was withdrawn with promises that it would be re-filed at a later date. It is inconceivable that Weerawansa filed the case without the blessings of the regime’s high command.

In fact, soon after the impeachment, speculation was rife about the introduction of the 19th and 20th amendments to the constitution, the former to shorten the term of office of the Chief Justice in violation of all norms pertaining to the guarantee of tenure to upper court judges; and the latter to repeal the 13th Amendment and replace it with a Jana Sabha system that devolves far less power from the centre to the periphery. Some Government insiders claimed the regime was mulling holding a referendum to ask the voters whether the provincial council system should stay or go.

Calls for the 13th Amendment’s repeal coincided with assurances by President Mahinda Rajapaksa, who repeated publicly in an interview with an Indian newspaper most recently that a northern provincial election would be conducted before the end of September this year. Accustomed though the citizenry and the world community is getting to hear the Rajapaksa administration speak in many tongues, a decision was reached in Geneva this year that the Presidential assurances, made repeatedly to both the Indian and US Governments throughout 2012 by a multitude of regime officials including the President himself, must be set in stone. So it was that the final draft of the US-led resolution on Sri Lanka at the UNHRC included a line welcoming the announcement of an election in the north by September 2013.

Doubts about the poll

But long before the line was inked into the UNHRC resolution, doubts had emerged about whether the ruling regime would be willing to conduct the northern provincial poll. For a Government that effectively controls every other provincial and local administration in the country, the loss of control, no matter how minimal – and that too, to a political party that it continues to view as a former LTTE proxy, as evident by statements made by the Defence Secretary and others since the end of the war – is inconceivably difficult.

Through the Divi Neguma legislation and other budgetary constraints, the Government has already significantly usurped and eroded the powers of the provincial authorities and restored them to the centre. Yet a resounding electoral defeat in the island’s north, where the Rajapaksa administration claims it conducted a humanitarian operation to liberate the oppressed Tamil masses, is an ignominy not easily borne by the incumbent regime. It is still smarting from local government electoral defeat in 2011 to the TNA in the north and east, despite using all the resources at its disposal.

Under the circumstances, to repeal the 13th and do away with the provincial government system altogether would be the most convenient option from the perspective of the ruling administration. But some sections of the Government at least realise that this move, while expedient from a domestic perspective, will not be without its share of equally dire consequences.

The repeal of the 13th Amendment would have been unthinkable some years ago, purely from the perspective of the Indian reaction to such a move. President Rajapaksa and his Government have repeatedly assured New Delhi that a power sharing deal with the Tamil parties would be founded on the basis of the 13th Amendment, but going beyond its devolutionary provisions.

Truly international concern

But where once the 13th Amendment to the Constitution was considered primarily India’s concern, it has since become the fundamental basis upon which the international community is calling for power sharing with the minority Tamil community. This development was largely attributed to the Lessons Learnt and Reconciliation Commission Report, which called for the full implementation of the 13th Amendment as a means of achieving a political settlement with the Tamils of the north and east.

With two UNHRC resolutions now calling for the implementation of the Commission’s recommendations, the holding of a provincial council election in the north – the only place in the country in which the provisions of the 13th Amendment are not being implemented even in part – has become a key focal point internationally.

Furthermore, it is reliably learnt that the Japanese Government, which has continued to support Sri Lanka internationally and economically in its post-war phase, even abstaining at this year’s UNHRC vote following an official visit by President Rajapaksa to Tokyo in mid-March, has expressed its keenness to see provincial elections held in the north by the Government’s self-imposed September deadline. Any delay or apparent attempt to redraw these election plans will likely push Japan over to the side of the Western lobby that is now pushing for sterner action on Colombo with regard to post-war reconciliation, devolution and accountability issues.

It is the quintessential catch-22 as far as the ruling regime is concerned. Any further attempt on the part of the Government to delay or scuttle the northern poll will legitimise claims that the Sri Lankan Government continues to deny the Tamil community its right to political autonomy. On the other hand, Tamil parties are not helping their cause, by parroting the demands of a defeated separatist movement that found no favour with politicians in the south the last time they were mooted. If anything, such calls will exacerbate the problems of the northern people, who are now at risk of losing their right to elect provincial representatives. If the ruling administration believes a provincial council will lead to the eventual establishment of an interim administration, it will undoubtedly hold off on conducting the poll.

Different directions

Caught between the devil and the deep blue sea, the administration is likely to keep pulling in different directions for some time. Statements of the kind expressed in Jaffna by Premachandran and other sections of Tamil civil society further polarises hardline factions within the incumbent regime. Premachandran’s appeal to the Indian delegation reinforces the position of these factions that believe the TNA continues to espouse the cause of separatism on a democratic platform. So far, the TNA leadership has not distanced itself from Premachandran’s assertions.

Therefore, the powerful Defence Secretary whose primary concern remains national security, will continue to block any moves to hold the provincial poll in the north, even if Mahinda Rajapaksa, being the seasoned politician in the grouping, might comprehend what could be a truly devastating fallout. The jury is out on whether the decision on the northern poll will ultimately be a political or military one. Unfortunately, if the recent past is any indication, the odds are the latter calculation will prevail.

A final decision on the September poll in the former battle zone could months away. When it does come, it will be a crucial litmus test for the regime and a significant perspective on its post-war political settlement plans.

Meanwhile, time is running out. Elections Commissioner Mahinda Deshapriya has already claimed that for a northern provincial poll to be held, the council must be gazetted by the end of April, to enable the Elections Secretariat to put the machinery in motion. That deadline is just days away. (Courtesy Daily FT)