18 October, 2017

13th Amendment Inhibitions

By Rajiva Wijesinha –

Prof. Rajiva Wijesinha MP

Prof. Rajiva Wijesinha MP

I had a bizarre experience recently when I had to attend what is termed Standing Committee B of Parliament, which deals with legislation. This was in connection with the Vasantha Senanayake Foundation (Incorporation) Bill which I had sponsored. The experience was rendered worse by the Minutes which I received subsequently, which bore no relation to what had actually taken place.

I presume that there is some formula for reporting the meetings of these Standing Committees, but it was certainly inappropriate in this case, given that I had raised some matters which I had asked to be recorded. The Minutes state that I moved several amendments to the original draft of the Bill I had presented. This was not the case. What happened was that we were told the legal advisers had gone through the draft and suggested amendments. I accepted these, but I asked the basis on which they had been made.

It turned out then that the representative from the Legal Draughtsman’s Department who was supposed to liaise with Parliament regarding the Bill had no idea of the reasons. After much discussion one bright lawyer from the Attorney General’s Department said that the changes were probably because the Bill as it stood seemed to be in conflict with the Constitution.

I gathered then that for years the Attorney General had advised against many charitable works by Foundations on the grounds that the Constitution, following the introduction of the 13th Amendment that introduced Provincial Councils, declares that ‘No Bill in respect of any matter set out in the Provincial Council List shall become law unless such Bill has been referred by the President…. to every Provincial Council’.

Though I grant that the interpretation adopted by the Attorney General is not totally absurd, it seems to me to confuse the words ‘No Bill in respect of any matter set out in the Provincial Council List’ with the much stronger prohibition, ‘No Bill in respect of any matter which refers even without any statutory change to any matter set out in the Provincial Council List’. This confusion makes for a very stultifying interpretation of the provision, and has certainly had a destructive effect on private legislation for charitable purposes. I cannot believe that this was the intention of the legislature when the 13th Amendment was passed. While in terms of the present Constitution Parliament should not interfere, except after due consultation, with the powers of Provincial Councils in respect of matters under their purview, the clause should not be taken to prevent social service or the promotion of sports or the conservation of the environment through private action.

I should note too that there is great inconsistency in the manner in which these limitations are imposed. Thus Vasantha Senanayake’s attempt to establish and maintain libraries is not wholly squashed since he is to be allowed to ‘assist the relevant authorities in the maintenance of libraries’, but no such compromise is offered with regard to sports or the care of the destitute or pre-schools.

To me it seems obvious that what should be avoided is detracting from the powers of Provincial Councils. Given too that a new clause has been introduced (proposed by me, the Minutes claim, whereas I did nothing of the sort), which I gather is standard practice, to provide that the work of the Foundation shall be carried out without creating conflict with any work of Government or any Provincial Council, I see no way in which Provincial Councils should be worried about such legislation. But I fear that this formulaic approach will continue, while the officials who insist on it have no idea of the reasons behind it.

I have written to the Secretary General of Parliament to ask him to draw the attention of the Legal Draughtsman to this incompetence and insist that officials sent to Parliament should be briefed about the matters on which they are supposed to advise. But I also felt sorry for the poor officials, since they have got so used to Parliamentary Committees which function through formulas and have no interest in either legislative or administrative principles. And I should add that I also felt the greater regard for the only young lady who at least tried to think, and came up with a convincing answer.

More seriously, I have written to the President as well as the Secretary General to suggest that the Supreme Court should be asked for a determination in this regard. It obviously makes no sense for Parliament to be unnecessarily limited in its legislative powers, and it would also make sense for the Court to lay down clearly the principle behind the clause I cited, namely that the Provincial Councils should have full authority as to legislation and regulation in the areas under their purview.

All this raises the issue of the absurdity of the manner in which the 13th Amendment was formulated, and the need for amending it to clarify matters and streamline action. Unfortunately the Parliamentary Select Committee that has been set up has not bothered to think about these matters, understandably so since our Parliament has long lost the practice of conceptualizing issues and dealing with questions that arise through discussion. At the same time there are some members of Parliament who still think it is their business to think. Though sadly the President is not in a position to make use of my services, I am sure there are other members of Parliament with at least some understanding of the issues, and with no agendas of their own. Some Ministers fall into this category, but since I did not want to seem selective in this regard, I have only suggested to the President the name of the Hon Janaka Bandara, who is on the PSC, and who will be able to understand the issues.

In retrospect it seems tragic that the PSC has been sitting for well over a year and has produced nothing. I can understand why the TNA has refused to participate, given that government failed to fulfil its promises to place either the outcomes of the 2011 negotiations with the TNA, or previous government proposals, on the table. The pledge regarding the latter was indeed a most impractical assertion of the President, to which he was propelled by the failure of those left on his negotiating team to brief him properly about the less controversial measures as to which consensus had seemed close at the negotiations. But even now I think the TNA could be persuaded back if discussions commenced on the basis of the proposals they had made in March 2011, which with a few notable exceptions the government team found acceptable.

But even while I think government should do more to draw the TNA in, and the TNA should be more accommodating, there is no reason why the PSC as it stands should not present an interim report which will suggest legislation to clarify the existing position. I can see that powers on either side should not be altered without consensus, but laying down processes for monitoring National Policy whilst ensuring freedom for Provinces to act in areas under their purview within the framework of such Policy would be useful. So too there should be clear guidelines on how the different levels can act with regard to the Concurrent List, since now the Centre is without the understanding of the ground situation that will enable it to engage in productive work in many of the areas in question, while the Province feels debarred from acting in fear of veto by the Centre.

I am sorry the President does not encourage such initiatives, since they would help him to solve the problems that now seem so enormous. Unfortunately none of those in decision making positions have been trained in problem solving, and the principle that a big problem can be dealt with easily if it is broken up into its different components, and solutions provided for those that are easy to solve. A cursory glance at the 13th Amendment would make it clear how effectively this principle can be applied. But with the interests of the public of less concern than the prestige of politicians, I suspect solutions will not be sought in sensible ways.

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Latest comments

  • 11
    0

    Prof. Rajiva Wijesinha MP,

    Yes, you are a wizard.

    How many committees, round tables, and negotiations Tamils have had with the Sinhala racist governments since SWRD’s all in vain?

    The present standing committee is no different, it may be more aptly called the stagnant committee: The Sinhala regimes don’t want to give any democratic rights to Tamils.

    Mr Wizard, don’t talk rubbish; just keep collecting your perks and money from the public purse and praise your excellency.

    • 3
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      This professor reminds me of the cat that doesn’t like milk:

      ”Clearly, the 13th Amendment does not do that, because that was not its purpose and it was not driven by an ideological commitment to sharing power. Rather, it was drafted primarily as a mechanism to keep the Tamils in line and to that end it reinforces control rather than share power”
      – – Will President Rajapaksa Expand Horizons For The Tamil People? Neville Jayaweera, 3 November 2013,
      https://www.colombotelegraph.com/index.php/will-president-rajapaksa-expand-horizons-for-the-tamil-people/

  • 2
    8

    Hello Prof,

    The Jaffna Tamil problem is not one can be ever solved. However, the messy constitution does need an overhaul.

    What I suggest you folks do is get together with the 2/3 you have presently and formulate a new constitution. Just call it the “interim solution” for external consumption. Just say you will finalise when the UNP decides to join. All constitutions are living documents that are never finalised anyway.

    There is too much overlap of responsibilities for one. Why not simply do away with the Pradesiya Councils altogether?

    Thanks

    • 3
      4

      Hug Kim Jong-un – pull the ol’ ABACADABA.

      you would be laughing all your life.

      (’-’*);

      • 3
        8

        Look here, whats your name again Javi is it?

        Forget me, do you even know what you keep blabbering on most of the time?

        • 3
          4

          ¡Hola! so you got Bogeyman at the tip of your finger??
          trying to con yourself with nomenclature?? What a borrowed ambude of the cultural revolution.!

          I do remember you count quackula- the forget me not free education that you were boasting about from your JVP days.

          The cultural revolution started with kussi amma that spawned elk like you so its difficult to forget the north korean led bazooka at appe lankawa.
          singha pattaw, kotti pattaw.

          You afraid of your own shadow?? Why so when Kim Jong-un is ever ready to comply at the drop of a hat??
          __________
          would China continue to stand by and support Sri Lanka against the west?

          A:(Dr. Wang) Yes, I certainly think China will stand by Sri Lanka even in the future.
          That is a defence treaty in the wind.
          Kim is free and fast.

          ¡Hola!Vibhushana
          Stupidity:Insanity: doing the same thing over and over again and expecting different results.–Albert Einstein

      • 4
        3

        Si Ja_vi yo SLAVE,
        (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕)(^‿◕)(^‿◕)(^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕)

        What is new apart from the C_R_A_P above and paying millions to Luny Swami without checking what he is going to produce. Money wasted,

        (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕)(^‿◕)(^‿◕)(^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕) (^‿◕)

        The Cheenavedi is not going to help you and if the Cheenavedi is all powerful as you think where were they when the IPKF arrived.
        Were they hiding in the bushes.

        • 3
          4

          Kali, International Terrorist Jati Thonduva, (Jaffna Tamil) Porriki Passa,

          Try attacking Lungi Swamy he will have you all down the drain pipe from the west- on identity theft issues, drug smuggling gun trotting to corner shops? Transsexual Tamil Government in the West.

          Way to Go?~゜・_・゜~  ~゜・_・゜~  ~゜・_・゜~ 

  • 2
    1

    How come a bizzare person like you notice a bizzare incidence. you are more suited to be in a bazzar selling rotten fish as fresh home made cakes.

  • 1
    1

    ”All this raises the issue of the absurdity of the manner in which the 13th Amendment was formulated, and the need for amending it to clarify matters and streamline action”:

    Professor
    Only ”clarify”?
    13A takes away with its left hand what its right hand gives –
    since the enactment of the Thirteenth Amendment in 1987, many constitutional experts and ordinary citizens have been writing a large number of corollaries of this fact. A few examples:

    Full implementation of 13 A – A response to Neville Ladduwahetty, Dr K. Vigneswaran, 27 July 2014, http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=107507

    Amendment Of The 13th Amendment, R.M.B. Senanayake, 8 June 2013, https://www.colombotelegraph.com/index.php/amendment-of-the-13th-amendment/

    Will President Rajapaksa Expand Horizons For The Tamil People? Neville Jayaweera, 3 November 2013, https://www.colombotelegraph.com/index.php/will-president-rajapaksa-expand-horizons-for-the-tamil-people/

    The Full Implementation Of The Thirteenth Amendment:What Can Be Done? Asanga Welikala, 11 feb 2012, https://www.colombotelegraph.com/index.php/the-full-implementation-of-the-thirteenth-amendmentwhat-can-be-done/

    22yrs of provincial councils, Institute of constituttional studies, December 2011

    13th Amendment: For whose benefit? Prof. Lakshman Marasinghe, 4 October 2009, http://www.nation.lk/2009/10/04/newsfe1.htm

    Why 13th Amendment per se is inadequate? S.Narapalasingam, 12 April 2008, http://federalidea.com/focus/archives/411

  • 6
    0

    Professori:

    you write “””…the Minutes which I received subsequently, which bore no relation to what had actually taken place.”””

    Deja vu; just like some some of utterances you made in the good old days when you were official mouthpiece for the regime.

  • 6
    0

    Professori: you write “””…Though sadly the President is not in a position to make use of my services,”””

    Professori, this unrequited love is going nowhere. I bet he doesn’t even take calls from you anymore. So sad when love goes bad. No more milk and honey, no more sweet nothings. This one hand business can be so demoralising. Go back to teaching budding brown sahibs; less hassle, more gratitude.

  • 3
    0

    It is essential to view the broader spectrum of the 13th Amendment. The 13th Amendment sends a clear message that Federalism is an expansion of democracy where the minorities can co-exist with the Sinhalese peacefully. If North-East can be merged, why not the remaining seven Provinces be reduced to four Provinces. This should have been done at the very inception.

  • 1
    1

    Forget about the 13th amendment, more important here is the Latest news on Percy:

    Blood in urine of Medamulana Percy Mahendra Rajapaksha: Warded at Houston hospital – condition carefully monitored by Lanka-e-News.

    • 2
      4

      perhaps, will it be a Nepali style change of monarchy??

  • 0
    0

    There is nothing sacrosanct about ‘the’ or any Parliamentary Select Committee – which is composed of laymen ‘elected’ to parliament via the most corrupt electoral process, which requires millions in wealth, armies of thugs and ‘law enforcement & military’ which turn a blind eye to violations of election laws, and a powerless elections commissioner appointed by a questionable process of selection.
    The PSC will also necessarily be composed of a majority from government ranks in parliament.
    The PSC which examined Shirani Bandaranayake adopted disgraceful procedures.
    This is why the TNA refuses to appear before such a PSC.
    Harping on such a PSC and ignoring how it performs, is an insult to all citizens and political parties.

  • 2
    1

    What in the world is this guy’s fascination with Vasantha Senanayake? Knowing our beloved professor’s somewhat unorthodox orientation and the fair good looks of the Senanayeke boy one wonders whether there is something more going down than policy making..

  • 0
    0

    Leave this Wijesinghe guy to MYOB.

    Sampanthan & Tean had met H/E Modi the other day and said 13th Ammendment was insufficient to govern and they needed in addition, Pan, Butter Kiri Tea and Watura…………..

    H/E Modi thad thought for a while and told the TNA the LTTE mouth pieces to go find a good Nurse to complain.

    We in Thondamanaru does not need any thing & all that we ask is for Water, Education & Medical facilities.

  • 1
    1

    As long ago it exited just make three provinces, Ruhunu, Maya and Pihiti.

    • 3
      3

      Jim Sooty,

      For your information there are only TWO provinces. A Tamil Province and a Sinhalese Province. You can do what you want with your Kingdom.

  • 1
    1

    I wonder where your sidekicks are, Dayan and Tamara ?

  • 0
    4

    this fucking shed came to our constitution from the India over night.i still can remember that we had serious of demonstration in petta and may place against this shed.we do not need India to ask what to do.new Indian prime minister mentioned that needs to build toilets before temples.he needs go one more steps that is just take care over 400 million people are living in worst condition in his own country before he thinks what to do for sri lanka Tamil whose life’s are much better than the people suffering his own country.I do have great respect and hope more than any other leaders in India and Asia with new prime minister of INDIA.13 is a bad luck and this is really bad for us.we block in this number.just not Tamil but majority of people do not have even just one (01)amendment to this dirty directorship Constitution which was approved by much of criminal and mother fuckers in parliament.so what is the reasons we do keep this shed.it is time we have to change this entire constitution if any one expecting to have future for this nation.this is only good for drugs delayers and murders and public cheaters like current politician in the country.

  • 4
    3

    Prof:

    At least there is a late realisation by people like you with regards to the inadequacies of the 13th Amendment. I have always believed that the 13th Amendment doesn’t go far enough to meet the Tamil Aspirations and it is a only a starting point. The 13th Amendment was rushed through in haste but for the right reasons.
    It is a two party agreement between the GOS and India and Sri Lanka cannot renegade on the agreement unilaterally.
    There is a Calm before the Storm and for obvious reasons. The Modi Government are adopting a step by step approach and do not want to play into Mahinthas hands as any interference openly by India will be to the benefit of Nahintha with elections round the corner. But after the elections and when the dust settles the pressure on whoever is elected will mount to deliver.
    We are already seeing the results of Mahintha flirting with China which has forced India to beef up the defence by sending a Military man to the High Commission to report on the threat.
    For us things are moving in the right and there is no going back.

  • 0
    0

    There is a presumption that only the minorities have problems. The sinhalese are pauperised daily by a economic system of markets that benefits the businessmen majority of whom are minorities. The govt prints money i.e. steals from the people and borrows money and gives it to the business men to make more money. The average farmer , public servant who are wage earners have stagnant wages in whose name this money is created have to bear the effects of inflation and taxes. These are mostly Sinhalese. Buisnessmen who earn money do not even pay their taxes properly. Tax revenues have fallen from 22% to 11%. The other beneficiaries are the corrupt administrators, political hangers on and the political class. The Sinhalese have also to deal with the corruption in education, health care and a inefficient public service run by political henchmen who drive them from pillar to post. The rule of law has been highjacked by the rule of lawyers. If this is not a disenfranchisement of the sinhala people what is? I am sure these are not dissimilar to the problems ordinary minorities face. Atleast the minorities have Leaders who shout about discrimination the Sinhalese have none. If ordinary sinhala citizens protests they are attacked by political thugs and even the police and army as you saw in Rathupassala etc. The only people who seam to be protected from this violence are the Buddhist monks hence the dependance on Bodu Bala Sena. The minority communal leaders who become ministers are not national ministers but communal ministers helped along by a ruling class that never questions them because the minorities are king makers and the rulers need the minority vote. The myth that the Sinhalese are beneficiaries are far from true. They are the most discriminated in Sri Lanka. It is time the country addresses these issues before it gets converted to violence. It is time reality pervades The country desperately needs to address the problems of injustice, Taxation, the ministerial dictatorships and communalism and corruption. The shouting by minorities of discrimination that they only suffer is both unfair and counterproductive. The country as a whole must rise and protest.

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