12 December, 2019

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A Referendum To Repeal The 13th Amendment?

By R.M.B Senanayake

R.M.B. Senanayake

The Government seems to be toying with the idea of holding a national referendum on the abolition of or changes in the 13th amendment. But can an ethno-religious majority decide against the rights of a minority by a majority vote? A certain institutional structure has been fashioned to resolve the grievances of the Tamil minority and to protect their rights with regard to their language, religion, culture, land and personal security of the minority. They have for long protested at what they called discrimination against them by the Sinhala dominated State. There is a UN Declaration called the International Convention on the Elimination of All Forms of Racial Discrimination.

The Tamil minority has been complaining that they have been disadvantaged and discriminated against since 1956.  They say their language and cultural rights have been denied and point to past attacks on the Hindu writers Conference. They say they have to deal with the State in Sinhala even in the areas where they are in a majority. They also say they have been deprived of personal security of life and limb and point to violence against them in 1958, 1977 and 1983. They point out that the Sinhala majority State failed to protect them from such violence. So they ask for police powers in areas where they constitute a majority. They say they cannot trust the Sinhala majority Police to act impartially. They also have been pointing out that there has been discrimination against them in the alienation of State land and want land powers to protect themselves from encroachments on their lands by the Sinhala dominated State. They also allege that there is settlement of Sinhalese in their traditional areas of occupation to make them a minority in their areas of habitation- something not permitted in UN Declarations.  It is to resolve these problems and prevent discrimination that they want some measure of self government while being subject to the over-all sovereignty of the national State. They have also alleged in the past that they were discriminated against in entry to universities through the unscientific standardization of scores which was later altered to district quotas for admission to the universities.

The 13th Amendment was a solution to these problems of the Tamil minority. They were to be given some measure of self government through a Provincial Council.

The shortest available definition of democracy according to Abraham Lincoln  is government of the people, by the people, for the people; in other words, political self-government. Direct democracy means the right of all citizens to directly vote on political subjects. According to modern political scientists there are Five Principles of Democracy which are

1. Basic human freedoms and rights.

2. Political equality/equal political participation.

3. Open power structure.

4. Rationality (transparency, efficiency).

5. Effectiveness

Of these principles, political equality is the most “democratic” one; it means that each citizen is the source of all legitimacy and has the right to participate in decision-making. If his vote doesn’t count because there is a permanent ethno-religious majority which decides against his interest it is not a democracy.

The “people” in the definition of Democracy includes everybody and includes the minorities. Majority decision making is only a convenient device for decision making but it does not give the majority the  license to deprive the fundamental rights of the minorities. Direct democracy, that is to say, the opportunity for the total citizenry to determine issues on the basis of voting for or against specific measures, is a product of modernity although it existed in ancient Athens where it collapsed. It is grounded in the principle that political sovereignty resides in the people and therefore they may choose to determine certain policies directly rather than relying on their chosen representatives in government.

The original founders of modern democratic republicanism in the eighteenth century did not look kindly on direct democracy through referenda or plebiscites because they believed that governmental decisions of that kind required deliberation. The people are known to be swayed by demagogues and to be incapable of rational discussion and informed judgments. So the Republicans did not think the fundamental values of democracy like freedom and equality among all citizens could be safeguarded in a direct democracy. They thought direct democracy would lead to tyranny.

As in any political system, democracy needs institutions and structures to act effectively in the political interest of all people. These can be institutions of direct democracy or representative and responsible institutions to ensure the minority has a say at least in matters affecting them. The 13th Amendment provides for this.

Of course referendums have been held on devolution in UK, and Canada. But the referendum was conducted only for the minorities- the Scottish in UK and for the citizens of Quebec in Canada. It is meaningless to hold a national referendum where the majority is 70% of the people and known to be no respecters of minority rights. The right to freedom and equality of the Tamil people cannot be denied by a majority .Referendums cannot be used to deny fundamental rights of a segment of the people. The Government will no doubt campaign for the abolition of the PCs and it has the whole paraphernalia of the media and the public money at its disposal. But it does not give the majority the right to deprive the rights of the minorities. The abolition of the PCs without putting in place alternative structures to safeguard the rights of the Tamil minority is not a measure of democracy. It will only open the way for endless discussion of the grievances of the Tamils with an invitation to India and the UN to intervene.

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    It is not possible to deceive intelligent public, any attempt to dilute and maintain useless PC will be an utter waste of public funds, people are so much indebted to IMF and China, attempt to dilute through a referendum will not be successful.

    Complete abolition will have a slim chance of succeeding in a referendum.

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      @Soundster

      The ‘idiotic intelligent public’ have been happily deceived since independence in 1948. In a referendum to abolish the 13th amendment the ‘idiotic intelligent public’ will happily vote in favour of it and the Rajapaksas’ will not need computer jilmarts to win. :)

      • 0
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        Government tries to remove all the powers in Provincial councils and try to appoint their sons and relatives to enjoy funds and maintain provincial councils, members of the powerless northern PC will not get those benefits as well.

        Best solution is to completely abolish any way they attempt to dilute…public knows why they want to dilute and maintain. No powers do any work just to extract money for the sons and relatives. General public is intelligent enough to understand the meaning of partial dilution.

        That is the reason why they approve complete abolition. Unfortunately many people reply here cannot understand something which is well understood by ordinary people.

        General public is more pragmatic than some of these writers.

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      Its a fools game to hold a referendum for the Majority- which will dominate the outcome when the majority is in fact the cause of the problem in the first place – as rightly pointed out here. Any referendum MUST be in the minority areas only.

      By majority I mean the corrupt and criminal family military dictatroship of the Rajapassas who are using Balu Sena and the 13th amendment to DIVIDE, DISTRACT and RULE Lanka and the SINHALAY MODAYAS in particular. Balu Sena, Ravaya balaya, who promote hate speech with patronage and protection from Gotabaya Rajapassa, are the REAL ENEMY WITHIN Lanka who are seeking to destroy its multicultural social fabric (and not the minorities). It is the greed, corrupt and criminal Rajapassa thugs – brothers, sons and political cronies and crony capitalists who are the enemy within the Lanka’s BODY POLITIC today.

    • 0
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      Sounster,

      “Complete abolition will have a slim chance of succeeding in a referendum.”

      Yes.

      Here are the opposition tag lines.

      1. Do you want the Rajapaksas Hegemony to be applied throughout the country, or only on the Provinces the Family Controls.

      YES VOTE = CONTINUE HEGEMONY AND DICTATORSHIP.

      NO VOTE = PUT A STOP TO HEGEMONY AND DICTATORSHIP THROUGHOUT THE COUNTRY.

      • 0
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        You can’t achieve this by telling yes to have diluted provincial councils. You will be in a much worse position if they maintain powerless diluted Provincial councils.

        Government tries to remove all the powers in Provincial councils and try to appoint their sons and relatives to enjoy funds and maintain provincial councils, members of the powerless northern PC will not get those benefits as well.

        Best solution is to completely abolish any way they attempt to dilute Provincial councils. The general public knows why they want to dilute and maintain. No powers to do any work just to extract money for the sons and relatives. General public is intelligent enough to understand the meaning of partial dilution. That is the reason why they approve complete abolition.

        Unfortunately many people reply here cannot understand something which is well understood by ordinary people.

        One of the members of parliament explained this, they establish useless nonproductive diluted Provincial councils, while there are two or three parallel administrations to do the same job.

        They try to appoint their sons and relatives to those seats, waste and enjoy all the funds and they maintain useless provincial councils for that purpose, general public is suffering no fertilizer subsidy, bus fare hikes, electricity fare hikes, no drugs and medicines, public is not protected by the police, No independent judiciary, tax payers funds wasted and enjoyed by sons and relatives of the politicians.

        General public is more pragmatic than some of these writers.

      • 0
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        They go beyond extracting and enjoying tax payers funds, See what has happened in Kagalle district in Wayamba province, they request the voters to vote for them and once appointed, their job is to collect ransom from the voters, if not given voters like the estate manager in a province who was killed due to non payment, same thing happens to the voter who vote for them, those are the reasons why they need to establish diluted provincial councils.

        General public will ultimately decide whether to dilute or completely abolish provincial councils.

  • 0
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    The results of a referendum including the majority community is a foregone conclusion given the type of paronia and hatred being imbibed in them.

    Of course Govt can do as it pleases and country face the consequences. An irreversible act without any recourse. A govt without any intelligence or principles.

  • 0
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    People in many multi-ethnic countries believe that democracy is rule by the ethno-religious majority, no matter what the minorities wishes are. This is the cause of many disputes including wars.

  • 0
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    If Sri Lanka had a leader, with thinking like you, from the time of independence the country would have been prosperous and a happy one.

    However, the Buddha Bhikkus have to be subdued to promote true democracy as you discussed. No Sinhala leader so far is able to or willing to do that!

  • 0
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    An extremely correct analysis by writer Mr. R.M.B Senanayake. This is the base line from which any further steps could be contemplated. This is how the civilized people and world look at problems and governance. A future government of Sri Lanka must definitely derive advices and opinions from contributors like Mr. R.M.B Senanayake.

    • 0
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      Whenever NPC is elected, it should have RMB Senanayake as its ”Lee Kwan Yew” – minder/adviser. Other Councils also will benefit if they ”employ” RMBS.

  • 0
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    All provincial administrations except in the North, East and may be for upcountry minorities must be abolished as they are redundant and act as a burden to the administration.

  • 0
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    That is the right and democratic thing to do.

    Just hold a referendum. Let the people decide.

    If anyone disagrees they can take the boat to Australia.

    Seriously, there should be state sponsored asylum boat service to Australia. They need NOT REACH Australia. What matters is they leave SL shores.

    • 0
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      The ‘Boat Operaters’ in high places could enrich themselves more.

  • 0
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    13A was forced on us by INDIAN ARMTWISTING.

    Referendum should tell India that the majority doesnt need/want it.
    aS A BYE-PRODUCT we will get rid of MONEY-WASTING Provincial Councils.

    I am not surprised at this tone of writing from RMBS. He has done it before and he will continue to pontificate.

    • 0
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      The whole point is only minority should vote on any referendum to determine their fate – internationally accepted norm(eg Canada, UK).

    • 0
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      JRJeyawardene invited Rajiv Gandhi while he dealt with Sinhala insurgents and also to ”knot” the Sri lankan Tamils and India so that they won’t collectively find justice and peace.

  • 0
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    I think there is sound reasons to do away with the Parliament since it is powerless and dishonest in it’s actions and no longer represents the peoples aspirations. I think we should have a referendum to abolish the parliament

    • 0
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      Complete abolition of the parliament will be approved by the public in a referendum, any attempt to partial abolition of the parliament should be defeated.

      Complete abolition and dilution are two completely opposite types of processes. Complete abolition is vastly beneficial to the general public. It is a hell of a nuisance to have a diluted parliament.

      • 0
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        Soundster

        “Complete abolition is vastly beneficial to the general public.”

        And crown MR as the emperor of greater Sri Lanka.

        You know he was conferred appropriately in advance the title “Vishawakeerthi Sri Threesinhaladishwara”.

        Man has a title now he needs an empire.

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    RMB says, “It is meaningless to hold a national referendum where the majority is 70% of the people and known to be no respecters of minority rights.” Then, what he wants is a “referendum” only in areas where the Ethno-Religious minorities dominate. Where is the principle? Where is his logic?

    What has this former Treasury Man got to say about Article 29 of the
    CEYLON (CONSTITUTION) ORDER IN COUNCIL that was thrown out by our former political bosses?

    Power of Parliament to make laws.

    29.
    (1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island.
    [§ 3, 29 of 1954.]
    (2) No such law shall-
    (a) prohibit or restrict the free exercise of any religion ; or
    (b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable ; or
    (c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions ; or
    (d) alter the constitution of any religious body except with the consent of the governing authority of that body, so, however, that in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body :
    (3) Any law made in contravention of subsection (2) of this section shall, to the extent of such contravention, be void.
    (4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island :

  • 0
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    An all-Island Referendum on the 13th Amendment is a joke and only can come from hollow minds. The region and the world will laugh at this. It is like the imbecile idea of pushing the TNA into the PSC so that it can be out-voted eventually by a Govt-packed majority. The idiotic idea is for the Govt to foolishly claim everything was done democratically.

    What Referendum in a country of nearly 80% Sinhalese – on a regular anti-Tamil diet for over 60 years – whose prejudiced mind is made to be drenched with the thought of a division of the country. If at all a Referendum was to be meaningful it should have been held in the 1960s when State-aided Sinhala Colonisation was somewhat less intense and when the present engineered Colonisation by the army was not in the Agenda. Besides, the demographic factor saw unnatural increases in sections of the population are all now part of our wounded history.

    Senguttuvan

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      Senguttuvan

      Did you vote for both Sinhala/Buddhist constitutions one in 1972 and the other in 1978?

      I don’t think you did because there were no referendum in both cases.

      What is the need or urgency in holding a referendum to abolish 13 A when both constitutions were passed with 2/3 majority in the parliament? MR could take the same route.

      When hard working up country Tamils were made stateless the Sinhala/Buddhists didn’t see the need to hold a referendum.

      Why now?

      • 0
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        It is very sad to then the powerful Tamil minister GG Ponapalam sided with Don S Senanayke in making the hardworking plantation workers who single handedly made Ceylon known to the world at that time due to the famous Ceylon tea. Ceylon was known to the rest of the world mainly
        due its high quality tea, however the hardworkers of the tea
        were made stateless, due to the fear of increasing the Tamil population in central Ceylon

  • 0
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    If a referendum is to be conducted for the 13th amendment, then it should also include the following:

    1. Removal of the Chief Justice and appointment of the Cheap Justice
    2. Having equal recognition for all the religions in the constitution without and special status for Buddhism.
    3. Religious monks taking part in political activities.
    4. Code of conduct for Parliamentarians and Secretaries to ministries.
    5. Superiority of Judiciary over the Parliament.
    6. Validity of 18th Amendment.

  • 0
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    IF the decision of the people of the country is the paramount, then go for an Island wide referendum and STOP THIS 100 MILLION MINORITY DICTATING terms TO THE 17 MILLION MAJORITY.

    • 0
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      Idiotic intelligent’s have more of foolishness than the other.
      where is the democracy for the minorities if the referendum is held in a country of 80% majority

  • 0
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    Sri Lanka, a small, beautiful country of 65,000 square kilometres, and
    Its population of 20.2 million is multi-ethnic and multi-religious. It comprises Sinhalese 73.8 per cent, Sri Lankan Moors 7.2 per cent, Indian Tamil 4.6 per cent and Sri Lankan Tamil 3.9 per cent.

    Sri Lanka has both Tamils and muslims in equal amounts.

    Why there should be a power devolution to Tamils alone ?

    • 0
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      Jim Softy – For the last time, please educate yourself prior to the arrival of the Colonialists in the island (16the century) there were three Kingdoms here living in relative harmony – the Tamil in the NEP, the Kandyan in the CP and the Low Country Sinhala in
      Ruhuna/Kotte. What the Tamils now ask for is – if a minimum form of internal-rule they have peacefully asked for in the main for the past 60 years (allowed to the other 8 Provinces) is refused to them, they should be allowed restoration of their Status Quo. From every aspect of natural and international law that position appears to be tenable. I must insist, to re-assure Sinhala readers, the present Tamil leadership is still willing to accept a reasonable formulae within an undivided Island. There is a sea of difference between this position and the LTTE’s insistence of “Eelam or death”

      Senguttuvan

      • 0
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        Senguttuwan:

        Africans spread all over the world though they are not now. So, why we don’t give them the whole world ?

        • 0
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          Jimmy,

          I am speaking of 500 years ago in a history of 2,000 years and
          you of 2,000 generations (Source – National Geographic) Looks like what the leader of MR’s dad started in 1956 may well be
          finalised by the Rajapakse sons. If that happens, the Rajapakse name will not be look upon with kindly by all present and future generations of Sinhalese. That, I suspect, is not according to the plan of The Family or Ven. Sobita Thero’s continuation of the modern Mahawansa.

          Senguttuvan

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    writer is such uneducated mentally sick man as he labeled all 70% of people are disrespect and do not care for minority rights.this is totally and factually wrong when we have 29 of current senior parliamentary members supporting to 13A and many opposition as well.this not a simple matter,due to undue disrespect act of the Indian unethical political leaders created this 13A at gun point undemocratic manner.we citizen have right to take action to correct this mistake for better future.we have over 2.3m tail but less than 900,000 people living in north and east ,so if you allow for them to do what they did over 30 years,people have no more capacity ti stop such brutal terrorist.so as Defence secretary mentioned to the Indian man last week, police power is non negotiable due to national security with his great expience and leadership.people when they retired and have time to write this nature of article against the public interest or handing motivation must be care full follow and take note.we need to re-structure entire administration system to cut the wastage of public funds and stop too much complicated political system.so just thinks all people not simply minority of 900,000 people. does this writer has any solution to up country and southern as well as Colombo kandy Tamil? what they will do when next time indian man ask to provide the way to live with dignity and respect others Tamils? soon Saudi’S kind will ask provide same to Muslim in the country to fully implement sharia law what solution this writer has?LET BUILD JUST SOCIETY THAT CAN HAVE OPPORTUNITY TO LIVE IRRESPECTIVE OF THEIR BACKGROUND IN SIMPLE MANNER ,WE CAN NOT DANCE FOR EVER ACCORDING TO THE INDIAN MUSIC AND STOP THIS NONSENSE.

  • 0
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    This is the most crucial and dangerous referendum which decides the future destiny of Sri Lanka. If the 13A implemented without amendments we Sri Lankans will have to face the following consequences: quote: Once they have won the PC election in September, the TNA will clamour for the SL army bases in the North and naval ports and air bases to be vacated, under the PC land power. They will build a huge police force and paramilitary force with the latest conventional weapons supplied by the diaspora Tamils through the imperial West. Well trained Tamil commandos will be recruited from Tamil Nadu to join the paramilitary force. An air force will be built equipped with a few fighter planes and bombers from India and the West. Similarly, a navy will be built with a couple of warships, FACs and a submarine or two. Eelam War V will be declared to avenge the total massacre of the LTTE hard core and its leadership. The South will be defeated and GOSL will fall. There will be massacres on a scale to dwarf even Rwanda genocides of the Tutsis. India, UN and imperial West will be silent. The whole of SL will be eelamised. More Tamils will flood from Tamil Nadu to SL to settle throughout the country. The Sinhalese will become a minority then. Buddhist temples will be razed to the ground and the monks killed. Even the Sri Maha Bodhi and Dalada Maligava will be destroyed. This is the likely scenario. Terrorists in India have recently bombed the sacred precincts of Bodh Gaya in Bihar injuring many pilgrims. It was an outrage but neither the UN nor the West condemned it. One does not have to be a prophet to foretell the future by the writing on the wall. unquote (My grateful thanks to Mr Nicholas Dias Abeyesinghe for the above information.)

    • 0
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      Northern and Eastern seas of Sri Lanka will be opened ONLY to one ethnic group for fishing. On the other hand, it will be open for Tamilnadu fishermen.

    • 0
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      Hi Boobamba fyi, The last Tamil King of the sinhala Kandyan Kingdom,was also the protector of the Sri Maha Bodhi and Dalada Maligava, and he was Kannuchchami Sri Wickrama Raja sinha reigned from 1739-1749.Who was the brother of the chief queen of the Madurai Nayak and succeeded after the death of the Ceylon king Veeraparakrama Narendra Singhan.

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    Sri Lanka is a tiny island comprising a land area of 29,332 sq.miles. Moreover majority people are Sinhalese (73%),Tamils (18%), Muslim and others (9%). It’s a mixed populated country. Therefore, it is not appropriate to establish two countries in small place like Sri Lanka. If divided there will be another war again. Tamil Nadu is several times bigger than Sri Lanka and it’s entire population appears to be Tamils. Why not the Indian authorities re-consider establishing a separate Eelam state in Tamil Nadu for exclusively for Tamils in India and Sri Lanka? Then the question of land and police powers and other grievances of Tamils will not arise.

  • 0
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    Sir with due respect for you, you must read the history of Ceylon.If you had inherited a house from your ancestors and rented part of it to another family with more members, and the tenants claim that they are the new owners of the house simply due to the majority, would you be willing to loose the ownership of your inheritance of your birth right.
    Northern Ceylon was a separate country ruled by the Tamils for the Tamils.It was never a political part of Sinhala Ceylon.It was a Tamil kingdom until the Portuguese vandalised it, and subsequently brought under one country called Ceylon by the british.

  • 0
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    A response to RMB would be different on whether a referendum is for the abrogation of 13A in its entirety or for the proposed amendments to remove the right of merger of adjoining Provinces and the removal of Police and Land powers.

    If we take the second choice, a point ignored by RMB is that removal of Police and Land powers is applicable to all the Provinces. So far these powers are not operative in any of the Provinces where Councils have been elected. There is no strong demand from them to make them operational. It must be accepted that these two powers are the powers, which are most liable to be abused. Even with the limited powers that the Provincial Councils have, the experience in the past is that they are being abused with impunity. If Chief Minister is given Police powers the Police will become part of his private army. The opposition will be harassed and there will be no democracy that RMB cherishes so much. One can argue that the Center has the power to take remedial action. Imagine the implications of taking action against the Northern Provincial Council. There will be riots in Tamil Nadu and we might have to face another Parippu drop diplomacy.
    The right of merger of adjacent provinces was a ruse to create the tradional homeland for Tamils. Such consolidation of Provinces vitiates the concept of decentralization.

    With regard to a referendum for the repeal of 13A two aspects must be taken into account. It cannot be discussed in isolation with what will replace 13A. Decentralization of the decision making process for good governance and reinforcing the sovereignty of the people on the principle of subsidiarity is accepted universally. The Provincial Councils are a reversal of the administrative structure of the country. The British established the District system because the Provincial administration, which prevailed at the time, was unwieldy and inefficient. The new animal of Provincial Councils introduced by India has the same and more disadvantages. The previous Provincial Administration was ably supervised by the Center. But the new animal is behaving like the wild ass.
    The decision in a referendum should be to replace the Provincial Councils with a District Administration system, which for all purposes prevails even now.

    The second aspect of the issue is why a referendum. It is to strictly to adhere to the RULE OF LAW, which RMB would stand by. That the 13A should be referred for a referendum by the people was a determination of the Supreme Court by a 5 to 4 majority, which examined the 13A. But the then Government used their massive parliamentary majority to give a different interpretation to the SC determination and pass the Bill without a referendum. RMB should not approve of this form of majority rule.
    One has to look at this issue as an all island issue and not only as an issue relevant to the Northern and Eastern Provinces. 13A introduced a fundamental change in the structure of the Government in the Constitution of Sri Lanka. Whatever the four out of nine learned judges of the SC decided it is only the sovereign people of the whole country who should .approve such a far-reaching change.

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