NPC ELECTIONS AND 13A
Buddhasãsana Kãrya Sãdhaka Mandalaya speaks out
We, the Buddhasãsana Kãrya Sãdhaka Mandalaya, are concerned that a large number of subjects which are fundamental to the territorial integrity of Sri Lanka as a unitary state have been assigned to Provincial Councils by the 13th amendment to the Constitution. In 1987 the 13th amendment was enacted at the coercion of India, as a means of providing a solution to the demands of extremist Tamil political sentiment whose powerful military arm was the Liberation Tigers of Tamil Eelam (LTTE). Now, although militarily defeated, the LTTE still exists as a powerful and influential international organisation outside Sri Lanka, having as its declared objective the establishment of a sovereign separate state in the Northern and Eastern Provinces independent of the Republic of Sri Lanka. It is in this context that we feel that Your Excellency as head of the present Government should re-consider the effect of the devolution of powers which must necessarily follow when the new Provincial Council in the Northern Province is elected in September 2013. We would respectfully invite Your Excellency’s attention to the matters set out below.
Under the 13th amendment, the powers of government and administration of each Province have been divided into three categories. List l of the 9th schedule of the Constitution contains subjects over which Provincial Councils have exclusive jurisdiction. Parliament can enact laws on any of those subjects only by a 2/3 majority. List III or concurrent list contains subjects where provincial councils have common jurisdiction with the government of Sri Lanka. List II or reserved list contains subjects where the Sri Lankan government has exclusive jurisdiction. What causes us the greatest concern for the peace and territorial integrity of the Country are the powers which will devolve under the subjects of Police and Public Order and Land and Land Settlement. The Provincial Coun-
The 13th amendment also contains provision for setting up a Provincial Police Commission which has the power to transfer, promote and discipline officers in the Provincial Division
cils already established in the rest of the Country, although vested with these powers, have shown little or no interest in exercising them. However, in the context of what has been stated in the first paragraph above, it would be unrealistic to expect the Provincial Council of the Northern Province not to exercise the full potential and scope of the 13th amendment, both as a means of consolidating their own power and as a stepping stone towards self determination at the behest of the Tamil Diaspora or the LTTE. In this regard, it is necessary to be prudent and conscious of the probable effects of current geo-politics on the territorial integrity and the sovereignty of the Country.
Police powers
According to the 13th amendment, Provincial Councils have the right to create and maintain their own provincial police forces (the Provincial Division) wearing distinctive uniforms. Police personnel from one Province cannot enter any other Province on official duty other than with the permission of that Provincial Council. While the Sri Lankan Government will maintain its own police force (the National division), such personnel also do not have the right to enter any Province on official duty except in very limited circumstances, namely: 1. Where the Chief Minister of a Province seeks the assistance of the National Division to preserve public order within a Province; (Even in such cases, personnel of the National Division must function under the direction and control of the DIG of the Province. (Appendix 1: 11 and 12.2). 2. Where a state of emergency is declared in any
Province; (Appendix 1: 11.2 (a) and 12.3). 3, Where the President is of the opinion that the security of or public order in a Province is threatened by grave internal disturbance, he may, without the declaration of an emergency, deploy any unit of the National Division; (The President may exercise this power only in consultation with the Chief Minister of such Province.
4. An offence which may ordinarily be investigated by a Provincial Division may be investigated by any unit of the National Division (e.g. the C.I.D.), only where the Chief Minister makes such a request, and the I.G.P. takes the view that such an investigation is necessary, after consulting the Chief Minister and obtaining the approval of the Attorney General. (Appendix 1: 12.4).
It is therefore clear that the National Division can engage in official duties within any Province without obtaining the consent of the Chief Minister, only when a state of emergency has been declared. In all other circumstances, the personnel of the National Division can perform official duties in any Province only if the Chief Minister has requested for such action or has joined in a decision to initiate such action.
Each Chief Minister is politically appointed after being voted into a Provincial Council. He must therefore act according to the political will of his Provincial Council. If a Provincial Council is controlled or influenced by external elements committed to creating a separate sovereign state, significant harm can be done to that end within the Province, short of creating a state of emergency, by ordering the Provincial Division to take no action and/or withholding permission for the National Division to enter the Province. Examples of such possible harm include political murders, political threats, assault, undue influence, subverting the course of justice, bribery and any other means of unlawfully nullifying the political will of the people of a Province. These provisions will undoubtedly allow the exiled LTTE to insidiously regain control of the Northern Province.
The 13th amendment also contains provision for setting up a Provincial Police Commission which has the power to transfer, promote and discipline officers in the Provincial Division.
However there is also provision for such a Commission to transfer its powers to any other person or authority. (Appendix 1: 5) By this means, the composition of the Commission required by law can be negated and power transferred to one individual who is willing to act on the command of his political masters. By using this means the Provincial Division of the police can be made a political tool to further separatist aims and objectives.
Land Powers
Legislation and administration regarding rights in and over land, land tenure, transfer and alienation of land, land use, land settlement and land improvement are subjects assigned to each Provincial Council, subject to the restrictions imposed by Ninth Schedule, Appendix II of the Constitution. Appendix II deals with State land and Inter-Provincial Irrigation and Land Development Projects.
Thus rights regarding private lands come entirely under the purview of the Provincial Councils. This in itself is highly undesirable in the Northern and Eastern Provinces where it has been sought to establish ethnic ‘Tamil Homelands’ by force of arms for thirty years. Prior to their being forced out by the hostili- ties, there were a significant number of Sinhala Buddhist people residing in both these Provinces for generations. While the Tamil citizens who were displaced by the war have to a large extent been resettled, the Sinhala Buddhists have not and are now clamouring to be re-settled. Whether the Provincial Councils in the North which will be elected by a predominantly Tamil electorate will implement a fair and equitable scheme of resettlement is highly questionable. The present powers jeopardize Your Excellency’s own view that “the entire country is the homeland of all communities living in Sri Lanka”.
Land vested in the Republic of Sri Lanka may be alienated by way of grants or dispositions according to law by the President under article 33 (d) of the Constitution. It would have been possible for the President to ameliorate the hardships caused to both the Sinhala Buddhists who need to be resettled and to Buddhist temples which need to be re-established by using those powers. However, Presidential power to alienate State land within a Province is now severely restricted by the provisions of Appendix II, section 1:3. Such alienation can now be made only “on the advice of the relevant Provincial Council”; in other words, only if a Provincial Council requests the President to do so.