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13th Amendment ‘child of rape’ must be legitimized or exchanged for legitimate baby of the nation

By Somapala Gunadheera

The homemade response to the UNHRC challenge has to begin with a clear understanding of the perspectives of the complaint. The Resolution calls for the implementation of the LLRC recommendations. But that does not imply that all the recommendations had not been complied with.

By and large, the recommendations may be classified under three broad heads, physical, moral and constitutional. ‘Physical’ refers to material initiatives like bomb disposal, resettlement, rehabilitation and infrastructure development. ‘Moral’ would mainly include human rights pertaining to language, education, employment, residence and movement, reconciliation and integration.

Investigation of alleged crimes by service personnel would also fall into this category. Foremost in this list is the immediate removal of institutional decay that has violated minority rights for decades under cover of ethnic overbidding. ‘Constitutional’ would include proposals pertaining to the structure of the State, its form and distribution of power.

The Indian Certificate

It appears from all reports that the physical aspect of the task has been attended to beyond reproach. The best certificate to this effect comes from the Indian political delegation that was here recently on a fact finding mission.

The normal tendency of such a mission would be to pick holes wherever possible and the delegates would not have failed to do so, if there was the slightest occasion for it. Such criticism would have boosted their standing among their tendentious colleagues. On the contrary, the delegates were full of praise for what had been achieved since the end of fighting, despite the insinuations of time seeking politicians on their side.

The Indian Certificate is incontrovertible proof of the enormous effort made to achieve the physical aspect of rehabilitation. The credit for that achievement must go to the team that was entrusted with the task. They played their role with efficiency and devotion but even they could not have gone so far, if not for the clout of their leader.

They were led by the Minister of Economic Development, Basil Rajapaksha (BR), who is widely known as a ‘Go-getter’. Even his leadership could not have achieved all that the team has achieved, if BR was not a sibling of the President. In the ultimate analysis the President’s personal impact looms large in the physical gains in the north and the east.

In this background, it is an easy guess that if the Geneva assessment was limited to physical accomplishments, we would have come out in flying colours. These accomplishments were overshadowed and contaminated by our failures on the moral and constitutional sides. Most of the ‘moral’ problems could be solved by effective administrative action within the already available legal framework.

The implementation of that aspect of development was entrusted to a committee of high-powered officials. I made the following observation when such a committee was mooted: “Committees of otherwise occupied top bureaucrats have never been known to produce tangible results in a hurry. Nor do they have the clout to make a revolutionary change in lethargic performance that has become routine over the years.

The task of implementing policies that are to make a regime change in inter-racial relations calls for nothing less than a Presidential Commission composed of outstanding men and women of action”. (The Island, May 03, 2011)

Failure of the bureaucracy

This assumption has been more than vindicated by the volume of the official committee’s ‘achievements’. Asked for a progress report, they have brought out a document that reveals inaction concealed in stereotyped jargon. If only the committee had succeeded in implementing at least the interim recommendations of the LLRC, we could have been in a far stronger position than what we encountered in Geneva.

Learning from the experience of the NE rehabilitation programme, it is clear that the President’s personal impact is a sine qua non for the full implementation of the moral aspect neglected by the bureaucracy. The best available structure for such an initiative appears to be a Standing Presidential Commission (SPC), as I have repeatedly stressed.

Such an institution will have immediate access to the centre of power and the clout of the President himself to direct and coordinate the entire government machinery, similar to the BR Team. It would also give the widest publicity and transparency to the ongoing effort. The achievements of the BR team and the proposed SPC will doubtlessly facilitate the search for a political solution.

The constitutional aspect of the response falls directly in the President’s court, as the head of the government in power. The main question here is the power structure of the state. Should it be unitary or federal? Although a federal constitution would devolve more power to the periphery, the concept has been heavily contested for decades from the angle of its practical applicability to the economic, social and security realities of the situation.

It is wise to realize the impracticability of a federal solution at the present stage of our political development. Mr. Sambandan’s recent option for unity reflects a mature appreciation of reality despite its effect on his political fortune. That broadmindedness calls for the other side to bend over backwards to alley the fears of the minorities

The ongoing debate is confined to the Thirteenth Amendment. Should it be 13A- or 13A- or 13A+? This controversy is likely to go on for a month of Sundays. The disputants appear to be unmindful of the fact that the fate of the north is much worse. They are still without 13A.

It is but fair that they were allowed to share 13A with the rest of the country. 13A is a part of our Constitution and every citizen has a right to demand its full implementation. But from its very inception certain privileges of 13A have been denied to all regions. Land and police powers granted under it have been held back from all provinces by the centre in violation of the Constitution. In that respect there has been ‘an intentional violation of the Constitution’ by JR and all his successors in office for which they are liable to impeachment under Article 38 (2) of the Constitution.

Presidential intervention

The impunity with which the Constitution has been thus violated shows how far Democracy has come from its Roman days. Progressively, leaders have usurped the power of the people until their will prevailed over the choice of the majority and the dictates of the law.

In that sense, Democracy has now changed its stance to what may be called ‘Rectocracy’ (rule of the leader) for want of a better word. Bush’s invasion of Iraq may not have been countenanced by the people of the US. On the socialist side, Stalin’s escapades may not have met with the approval of the soviets. In either case ‘Rectocracy’ has supplanted Democracy imperceptibly.

Compared to the above aberrations, the apparent violation of 13A by our Presidents may appear to be venial. Particularly in the circumstances under which it was shoved down JR’s throat, Presidential hiccups on it may be understood sympathetically. The Island Editor calls 13A ‘a child of rape’. Even so it cannot be smothered out summarily. We have to either legitimize it or swap it with a legitimate baby of our own. Successive governments have dragged their feet over this primary responsibility.

If 13A is not acceptable to the government, it must make up its mind on exactly what it wants without passing the buck on incessantly. Referring the matter even to a Parliamentary Select Committee, until the government makes up its own mind on what is feasible, is an exercise in futility. Under the existing equation of power, what would prevail ultimately is the choice of the government. If the government has no choice of its own, only nothing can prevail at the end of the search.

This means that the government has to get down immediately to the task of evolving a Constitutional structure that is acceptable to the majority while ensuring that the discovery does not hurt the minorities.

This is not a task that can be subcontracted, though expert opinion may be consulted as a preparatory measure. Let not that opinion go down the drain as in the past. The President must personally sit down with the stakeholders and see that the ‘child of rape’ is exchanged for a legitimate baby of the nation. Until that is done on a time frame, let 13A apply equally to the entire country despite its shortcomings

LLRC’s recommendations on the application of 13A are not obviously made after an assessment of the intrinsic validity of its provisions.

What is intended essentially is that the unending tussle for power sharing be amicably settled to ensure lasting peace. The constitutional aspect of the Commission’s recommendations would be satisfied with the President making a final decision on the structure of the State after due consultation.

This is best done sooner than later when the President was at the peak of his power with a two-thirds majority in Parliament. Thus would he consolidate a nation he had rescued from the throes of a bitter war.

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