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DEVOLUTION - The 13th Amendment to the Constitution

                            - Articles on Devolution

                           -  Opinion on Devolution

 

         

  THE 13th  AMENDMENT  TO THE CONSTITUTION

                    At present, the 13th Amendment poses a danger to the unitary nature of the Sri Lankan state in the event the Tamil politicians, especially the politicians from the Tamil National Alliance (TNA) [A pro LTTE political Alliance with a separatist agenda] gets elected and achieve full control of the Northern Province.

The following provisions will set a path in motion for the Tamil dominated Northern Province to seek more and more political powers until it acquires sufficient powers to go for a Unilateral Declaration of Independence (UDI) as done by the Ex-Chief Minister Mr. Vartheraj Perumal at the very beginning of the PC system.

How the Central Government (CG) is going to stop an uprising by the Tamil ethnic civilian majority in the northern area in the event the North PC decides to go for a UDI? The Chief Minister will first prepare the political background ground before declaring a UDI.

To start with they will ask things that the CG could not possibly meet such as unlimited money, aid and more and more political powers and thereafter carry out the propaganda within the ‘international community’ that the CG is ill-treating their province because of its ethnicity. A new set of Tamil grievances will be made to arise. Next step will be to propagate the idea that the only solution to that problem is separation.

Thereafter, there will be attempts to get rid of the security forces from those areas. How long the military could suppress an unarmed civilians uprising with international pressure mounting with the threat of aerial bombing? A politically strong President like MR will have no choice but to give into it. It will be an easy breakaway with a weak President and with an unstable government. The N & E PCs have all the ingredients to go for a UDI if the 13th Amendment is kept intact. The so-called Sri Lankan state is inherently unstable politically.

The day that President MR decides to hold elections to set up the Northern Provincial Council might be the beginning of the end of Sri Lankan State as a unitary State. If the present uprisings in the Middle East are any indication, then it is far better that the President takes a safer path than be sorry later. The rule “Safety of the Country before Democracy” applies here.  

PROVISIONS  OF THE 13th AMENDMENT THAT POSES A DANGER TO THE UNITARY NATURE

154A(3).  Notwithstanding anything in the preceding provisions of this article, parliament may by, or under any law provide for two or three adjoining provinces to form one administrative unit with one elected Provincial Council, one Governor, one chief Minister and one Board of Ministers and for the manner of determining whether such Provinces should continue to be administrated as one administrative unit or such administrative province should constitute s separate administrative unit with its own Provincial Council and a separate Governor, Chief Minister and a Board of Ministers.

NOTE: The merged N & E provinces have been de-merged according to the joint ruling issued by the Supreme Court on 16th October 2006 for the petitions bearing numbers S.C (FR) 243 / 06, 244 / 06, 245 / 06. The SC ruling has not prohibited a re-merger. Therefore, it is also a temporary de-merger.

154B(9). Without Prejudice to the powers of the President under Article 34 and subject to his directions the Governor of Province shall have the power to grant a pardon to every person convicted of an offence against a statute made by Parliament on a matter respect of which the Provincial Council has the power to make statutes and to grant a respite or remission of punishment imposed by Court or any such power:  Provided that where the Governor does not agree with the advice of the Board of Ministers in any case and he considers it necessary to do so in the public interest, he may refer that case to the President for orders.

NOTE: This provision has the power to grant pardon to persons who have supported paramilitary groups. When the President is weak or when he has been misled or when he has to appease the PC for his political survival, then he will grant pardon for anybody that the council recommends.  

154F(3).  The question whether any, and if so what advice was tendered to by the ministers Governor shall not be inquired into any court.

NOTE: This provision would allow the ministers to deal secretly with the Governor thereby influencing him from the back door.

            154G(1).  Every provincial council may subject to the provisions of the Constitution makes statues applicable to the province for which it is established, with respect to any matter set out in the list 1 of the ninth schedule (hereinafter to referred to as “the provincial council list”).

            NOTE: The northern PC with an agenda for separation will force the CG to expand this provision until the CG has no meaningful role to play in that province. 

154G(11).  Notwithstanding anything in paragraph (3) of this Article, Parliament may make laws, otherwise than in accordance with the procedure set out in that paragraph in respect of any matter set out in provincial Council list for implementing any treaty, agreement or convention with any other country or countries or any decisions made at an international conference, association or other body.    

NOTE: This provision will pave the way to deal with other countries starting with the approval of Parliament first and thereafter getting into the habit of doing things on their own without informing the Parliament. This provision as provision 154A (3) will be an extremely damaging to the unitary nature if allowed to operate in the Northern PC.  

           VIEWS EXPRESSED AGAINST THE 13th  AMENDMENT

(A). THE ISLAND NEWSPAPER – 10.06.2009

Titled: Devolution of Public Order and exercise of Police powers – Indo – Lanka Accord has no such requirement. By Leo Perera Ret:  Senior DIG.

Extract: - “ If Police power are devolved to the provinces, with the present day transport and communication facilities, more criminals will disappear from one province to the other much more easily than they did in the 1890s and will go undetected and unpunished.”…

(B). THE ISLAND NEWSPAPER – 01.07.2009.

Titled: – Sinhala Bushism and the 13A. By C.Wijeyawickrama.

Extract - “To agree to give land powers to a set of politicians who professed a right to a traditional homeland in the Eastern province with a Tamil state party formed in 1949 was foolish and suicidal”

            (C). THE ISLAND NEWSPAPER – 10.07.2009.

            Titled: – The 13th – Amendment is a bad idea. By Malinda Seneviratna.

            Extract: - “ Dayan’s defense of the 13th Amendment and his plea for its implementation is predicated on the validity of the Tamil (Chauvinist) demands, or, to put it another way, the erroneous and mischievous assertion of the equation that equates ‘grievance’ + ‘aspiration’ to ‘ legitimate demand’.     

(D). THE ISLAND NEWSPAPER –

Titled: - Another view on the thirteenth Amendment By B.A.Jayasekera.

Extract: - “In Sri Lanka, if chunks of territory are given autonomy on ethnic lines, we will be planting the seeds of separatism.  In course of time it could lead up to clamours separation echoed by political and other pressure groups in India’s Tamil Nadu”.

(E). THE ISLAND NEWSPAPER – 17.07.2009.

Titled: – ‘Chasing a crooked shadow’ 13th-Amendment.  By Upali Cooray.

Extract: – “The call for “Elam” is crooked in concept. We have defeated it. The 13th Amendment is the shadow of this crooked concept, which was imposed on us under duress. Therefore, we should not “chase a crooked shadow”.

(F). THE ISLAND NEWSPAPER – 08.08.2009.

Titled. – ‘13th Amendment is Indian constitution plus’ By Sugath Kulatunga.  

Extract: - “Legal luminaries like H.L de Silva and R.S Wanasundara have pointed out that it violates the unitary status of the constitution. Although, the Tamil parties consider that the 13th Amendment does not meet Tamil aspirations for self-government, it is on record that Rajive Gandhi, who was the chief architect of the Indo-Sri Lanka Accord had given an assurance to Prabakaren that “ newly created North – Eastern province for Tamils will enjoy as much powers as Tamil Nadu enjoys in India”.

(G). THE ISLAND NEWSPAPER – 18.08.2009.

Titled – The 13th Amendment By D.Siriratna, Ambalangoda.

Extract – “What President Mahinda Rajapaksa did in 2009 could have been done by President Jayawardana in 1987, if not for the India’s intervention in our internal affairs. Less said about the training given to the terrorist in India, the better. In fact the grave injustice caused to Sri Lanka needs to be taken to an international court with a view to seeking compensation.”

(H). THE ISLAND NEWSPAPER – 09.09.2009.

Titled – Legality / constitutionality of 13-A may be questionable.

By Neville Ludduwahetty.

Extract: - “However, complex the “procedural constraints” may be, the simplest solution would be to repeal the 13th Amendment and regain the sovereignty of the people that had been compromised.”

(I). THE ISLAND NEWSPAPER – 08.01.2010.

Titled. – Is the 13th Amendment a Nonentity? By Douglas Premaratne PC.

Extract: - “ If the 13th Amendment was forced upon us under the threat of invasion and the then Government had no alternative but to give effect to it, then the document becomes void abinitio and invalid. Under our law any document or a statement done or made under duress or any threat or compulsion is illegal and invalid. An invalid document (Bill) could not have been presented to the Supreme Court for determination under Article 120 of the Constitution as there was no legally valid Bill before it.”

(J). THE ISLAND NEWSPAPER – 25.09.2009.

Titled – Is 13-A valid any more? By Gamini Gunawardane.

Extract “It is common knowledge that the LTTE approached all the peace talks held in the past with three fictitious principles which they maintained right throughout as non negotiable, which different governments of SL consistently rejected.

They are:  (1). That the Tamils are a separate nation (2). Therefore, they are entitled to self-determination. (3). That the Northern & Eastern provinces of SL are their traditional homelands. All the wars were fought on this basis – to preserve the territorial integrity of the country at a great cost of life and property for the last 30 years. So many war heroes laid down their lives for this cause and so many parents had to dedicate their precious for this cause.  It would be seen that the 13th Amendment provides facility for the merger of two or more provinces by mutual consent. As a demonstration of this possibility the Northern & Eastern provinces were merged temporarily through emergency regulations.  It is evident that this provision would be a measure to deviously concede the ‘principle 3’………………… “It is not adequate to defeat it on the battle ground but ideologically too through the rejection of the 13th Amendment.”

CONCLUSION

A 2/3 majority at Parliament was the only requirement to enact the 13th Amendment with the approval of the Supreme Court (SC). Similarly, a 2/3 majority could abolish it and for that SC’s approval is not required. Therefore, a similar version of the present 13th Amendment could be enacted by acquiring the same requirements even if the present 13th Amendment is abolished. 

It is generally known that legal provisions are complex systems created by a group of humans collectively under certain conditions and have no natural support mechanism. Thus they are easy to make, change or repeal.  If the 13th Amendment is to be abolished due to the idea that it creates a stepping-stone for separation, then abolishing the 13th Amendment only removes one avenue that could be utilized to initiate a separatist program but not other avenues. Civilian uprising is another and the idea is gaining grounds.

President MR has stated that he has liberated the Tamils civilians held captives by the terrorists. If that is the case, then it becomes necessary to remove the natural conditions that supported the terrorists to do it in the first place. To describe this in simple terms, why the terrorists did not started their activities in other parts of the country? They could not because the natural conditions were simply not there to maintain a large army that could threaten the territorial integrity of this country.

Thus then what are those conditions? There is only one and only one main support factor that created the condition to start a terrorist movement in the northern area. That is the singular ethnic composition of the Northern Province. Therefore, there is a clear solution to eliminate this danger creating a terrorist army permanently or a civilian uprising. 

The President could eliminate the threat of separatism by settling a sufficient number of Sinhala people and other non - Tamil people in the northern area. Had this done earlier, then there would have been no terrorism, no war and thousand of lives could have been saved.   If northerners are allowed to buy lands elsewhere in the country then what logic is there to prevent a southern, a central or a North Western resident from buying a plot of land in the Northern area? Therefore, the government should allocate suitable lands; first for those are financially able to build their holiday homes in that area on their own or allow property developers to build houses. Lands for the Sinhala farmers should be allocated, as there is a serious shortage of Sinhala farmers in the Northern area.

 

 

 

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