The proxy war against 13A

To mark four years since the end of the military conflict and the defeat of the Liberation Tigers of Tamil Eelam, the ‘victorious’ Government of President Mahinda Rajapaksa held its annual Victory Day parade last Saturday (18).

This year, the Government moved to remove the concrete island dividing the lanes on Galle Road facing the Galle Face Green, to make room for the military march that was to feature bigger rows of soldiers standing shoulder to shoulder, in the style of Chinese or North Korean military parades.

Four years since the conclusion of hostilities and nearly two years since a Government-commissioned Lessons Learnt Commission recommended in a widely-hailed report that the State of Sri Lanka move to mark 18 May with gestures of reconciliation to remember the fallen on both sides of the ethnic divide, especially civilians, the only concession the Government appeared to make to healing the wounds of conflict was to dub the ceremony the ‘Humanitarian Victory Day Parade’ to offset the customary display of military strength and valour.

The title alludes to the Government’s constantly reiterated claim that the final phase of the battle against the Tamil Tigers was a ‘humanitarian operation’ to save the Tamil people from the brutal grip of the LTTE, even as questions continue to mount internationally with regard to the deaths of thousands of civilians, rights abuses and violations of international law during the conflict in 2009.

The Rajapaksa administration continues to maintain that these international challenges are merely attempts to tarnish the image of the Sri Lankan State and achieve through diplomatic coercion what the LTTE could not achieve through military means: the separation of the country. In his Victory Day speech, President Rajapaksa claimed that the calls for ‘human rights,’ ‘democracy’ and ‘judicial independence’ were “sinister” moves to “break up the country”.

13A equals separatism

For the Sri Lankan Government, power devolution to the minority Tamil community residing in the north, even in terms of the 13th Amendment, is not too different. The Divi Neguma crisis that led to the sacking of the country’s 43rd Chief Justice sealed the fate of the 13th Amendment as far as the ruling regime was concerned even though movement on the issue has been slow because of the international focus on the legislation as being the starting point any political settlement with the Tamil community.

Chief Justice Shirani Bandaranayake was hastily dispensed with for having dared to deliver judgments that ran directly contrary to the Government’s aims to dilute and render redundant the provisions of the 13th Amendment, going so far as to uphold a petition by the Tamil National Alliance pleading against the authority of the Northern Province Governor – a presidential appointment – from sanctioning the Divi Neguma Bill in the absence of a constituted provincial council, whose powers critics say the controversial bill was aiming to usurp. Calls for the repeal of 13A emanated in the immediate aftermath of Bandaranayake’s impeachment from the regime’s most powerful officials, including Defence Secretary Gotabhaya Rajapaksa and its most commonly utilised mouthpieces such as Wimal Weerawansa.

In March this year, when Tamil Nadu was heating up and throwing challenge after challenge to the Central Government in India, the Defence Secretary claimed that the 13th Amendment would allow provincial authorities to do the same in Sri Lanka and reiterated that it was a good thing the provisions of 13A were not being implemented in the north.

With the onset of the UN Human Rights Council’s 22nd Sessions in Geneva in February-March and the uncertainty over the confirmation of Colombo as the venue for a major Commonwealth Summit in November, the Government pushed its concerns about the 13th Amendment to the backburner, given the international focus on Sri Lanka in the last few months, particularly with regard to its handling of minority concerns.

But in recent weeks, with the next session of the Human Rights Council in Geneva many months away and flushed with the victory of having been confirmed as hosts of the 2013 Commonwealth Heads of Government Meeting last month, purportedly due in some measure to diplomatic machinations by New Delhi, the decibel levels of protests against the 13th Amendment from within the ranks of the ruling regime have increased again.

India jittery?

The moves prompted a phone call last week from Indian External Affairs Minister Salman Khurshid, who said his Government was concerned about reports that Colombo was mulling a repeal or amendment to the provisions of the 13th Amendment, specifically the land and police powers devolved to the provinces through the 1987 Delhi designed legislation.

While it is not clear how External Affairs Minister G.L. Peiris responded to his counterpart in New Delhi, no doubt the first reaction would have been to placate the Congress Government that no such changes were being considered to the legislation the Sri Lankan Government has repeatedly assured New Delhi would form the basis of a more wide-ranging power sharing deal with the Tamil people.

It is no accident that news reports about proposed changes to the 13th Amendment prompts calls from high officials in New Delhi – and that those calls are promptly made public in the Indian press. Speculation is rife that the Indians used their good offices to secure CHOGM for Sri Lanka with the caveat that the Rajapaksa Government follows through on its pledge to hold Northern Provincial Council elections by September this year. If this is in fact the case, then the renewed calls for the repeal of the amendment or its dilution from within the ruling administration are poor thanks indeed as far as New Delhi is concerned. But what would be truly shocking is if India actually expected things to be different this time.

Over the years, the Rajapaksa administration has grown adept at having their ideological battles fought by proxies, often through the use of their coalition allies. The infamous hunger strike and UN Headquarters blockade in Colombo by National Freedom Front Leader Wimal Weerawansa was such a proxy war against the appointment of a UN expert panel to study the final phase of the Sri Lankan conflict by UN Secretary General Ban ki-Moon. When the US announced it would move a resolution against Sri Lanka at the UNHRC in March last year that would be co-sponsored by several Western countries, the Government mobilised vast numbers of Civil Defence Force personnel in civil clothing to stage ‘mass protests’ against Western diplomatic missions. Minister Mervyn Silva, the Golden Key depositors, the SLFP trade unions and legal associations have all been utilised to great success by the regime to advance their ends, when it seeks to project a facade of popular support for its policies and campaigns.

The proxies

The battle that looks poised to ramp up over the 13th Amendment looks no different. Senior regime officials, having made the commitments to New Delhi and Japan and other friendly nations about the northern elections and the use of 13A to frame a final political settlement to the country’s ethnic problem, cannot be seen to be associated with the campaign to discredit and dilute the provincial council legislation. It has plenty of hardline ultra-nationalist elements within its ruling coalition, most of whom are virulently anti-Indian, more than willing to wage war against the 13th Amendment.

Jathika Hela Urumaya strongman Champika Ranawaka recently suffered a snub at the hands of the ruling powers after his protests against the Sampur power plant – an Indian project – cost him the Power and Energy Ministry in the January Cabinet reshuffle. Yet his anti-Indian credentials may prove as valuable to the Government as ever, when Ranawaka submits a Private Members Bill in Parliament this week as promised, seeking to amend the 13th Amendment, or goes to Court in a bid to have the legislation repealed.

Ranawaka is charging that if the TNA clinches power in a northern poll in September, it may use the powers of the 13th Amendment to divide the country. The JHU Minister, like his NFF counterpart Weerawansa, is concerned about the land and police powers devolved to the provinces under the amendment that have nevertheless never been implemented. Since it is not possible to implement powers asymmetrically (issuing land powers to councils in the south, but not in the north and east), land and police powers have remained the sole jurisdiction of the central Government.

The concerns of the hardline Government ministers are based on a simple calculation. The Government of Sri Lanka has repeatedly issued commitments to the Indians and other sections of the international community that any power-sharing arrangements with the Tamil people would be based on the full implementation of the 13A and go beyond the provisions of the provincial council legislation in the final political settlement. Given this commitment, there is little doubt that once provincial council elections are held in the north and, as is mostly likely, the TNA wins a majority in the area, allowing it to control the council, India and the international community will begin pushing for the full implementation of the 13th Amendment, including the granting of police and land powers.

For the ultra-nationalists within the Government, who are still flogging the spectre of the separatist LTTE the way they are, the TNA’s acquisition of land and police powers is a scenario too terrible to contemplate. Concerns across the Palk Straits at these moves by the Government’s alliance partners no doubt prompted Petroleum Minister Anura Priyadharshana Yapa yesterday to announce that only a Parliamentary Select Committee had the power to propose changes to the Constitution. Whether the Minister was referring to the PSC on the final political solution that the TNA is still refusing to join was not immediately clear.

But the fact remains that as far as the calls against 13A are concerned, the apple does not fall far from the tree.

Reasons of its own

Battles for land being what they are in the Northern Province, especially in light of legal action filed against State acquisition of land in the province and the growing discontent among ordinary people in the region over the issue, the Government would like nothing better than complete jurisdiction over land throughout the country. And the regime’s security apparatus and paranoia being what it is, it is highly unlikely that the defence establishment will give up police powers to a TNA-controlled provincial authority in the garrisoned north without a major fight.

Momentum against the amendment is also building within the Sinhala hardline groups that have recently been making waves with anti-Muslim campaigns across the country that have resulted in violence more than a few times already and strong words about Muslims being discriminated against in Sri Lanka in a recently-released US State Department report.

The controversial Bodu Bala Sena group, which has repeatedly shown itself to have powerful backers, on Tuesday called for the repeal of the amendment. Vociferous Bodu Bala Sena General Secretary Galagodaaththe Gnanasara Thero vowed to mobilise the public against the northern poll in order to “compel the Government to re-establish the Sinhala communities in North and East Provinces,” according to reports from a BBS news conference. If there is one trend worth noting in the current political context, it is that the Bodu Bala Sena almost always gets what it wants. It sought a ban on Halal certification and two months on, supermarket shelves are completely empty of Halal branded products. The BBS wanted Kuragala reclaimed before Vesak. A few weeks ago, the Archaeology Department commenced excavations at the sacred site that has involved the demolition of buildings and religious paraphernalia that previously demarcated the spot as a historic Sufi shrine, in a thinly-veiled attempt to assert archaeological hegemony over the area and mark it out henceforth as an ancient Buddhist site.

In both cases, powerful regime officials “intervened” to mediate the disputes. In both cases, there was a clear cut winner. It remains to be seen if the BBS’ latest campaign against the 13th Amendment will see as much traction.

A summit to plan

And so the Indian concerns about the volume of the anti-13A rhetoric notwithstanding, the regime’s proxy war against the legislation is unlikely to end until some resolution on the issue is reached that can be satisfactory to the hardliners within the UPFA coalition. The only question is whether September will pass by while the debate rages within the ranks of the regime. As for how quickly the tables have turned again on the Government’s commitment to holding elections in the north and upholding the provisions of the 13th Amendment, the international community and especially India may have to look inwards in their placing of blame.

In attempting to convince the Government in Colombo to move on its post-war issues by securing the summit for a ruling regime beset by international challenges, New Delhi and the CHOGM member states may have overestimated the power of persuasion and reward. The Rajapaksa administration prides itself on double-speak and promises made are all too often, promises broken as New Delhi has learned repeatedly in the years since 19 May 2009.

The northern election will become a sticking point for the Rajapaksa Government when Geneva comes around again in 2014, when it is likely to be further censured at that forum. But that the regime believes it has plenty of time to work on getting around the problem – whether by means of an entirely new piece of legislation, amendments to the existing 13A or new promises to the international community.  In the meantime, thanks to the new lease of life granted by the Commonwealth Ministerial Action Group (CMAG) to Colombo in April, when it chose to ignore growing calls for greater scrutiny of the CHOGM host’s human rights record and its commitment to upholding democratic principles that make up the Commonwealth Grouping’s core values, the ruling regime has a summit to plan, the British Crown Prince to throw out a red carpet welcome for and great pomp and pageantry to put on display.