19 September, 2018

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Danger Of Ditching Devolution For Political Reasons

By Jehan Perera

Jehan Perera

The government has apparently had second thoughts about abolishing the 13th Amendment that deals with devolution of power to the provinces. Its spokespersons now say that such an action is not contemplated at the present time. They even say that the government is considering how to go ahead with President Mahinda Rajapaksa’s war time promises of a political solution that is based on “13th Amendment Plus”. Whatever the President’s enigmatic statement may mean the government’s turnaround is significant. Just a few weeks ago, some of its top leaders were making statements that were very critical of the 13th Amendment and urging its abolition. However, the government’s reversal is positive to the extent that it gives some breathing space for stability to return to the deterioration that has been taking place in inter-ethnic political relations.

The most immediate justification for abolishing the 13th Amendment has come from a new recognition of its legal potency. The government has become used to using its massive 2/3 majority in Parliament to push its legislation through all democratic and legal obstacles. However, it now finds the 13th Amendment being utilized by opposition parties and civic watchdog groups to challenge the Divineguma bill that the government has presented to Parliament. The government is placing much emphasis on turning this into law as it will be greatly advantageous to itself politically. Not only will the Divineguma law give the government virtually unfettered access to local level funding, and unify the work of at least five government ministries at the community level. It also gives pension rights to large numbers of persons who are working for the government but not as regular public administrators. They would be a formidable asset to the government at future elections in terms of their ability to do grassroots level campaigning that is outside of the customary administrative regulations that outlaw partisan political activism.

The legal challenge to the Divineguma Bill has come primarily from its potential to erode the powers given to the Provincial Councils in terms of the 13th Amendment. The proposed law intrudes into areas that have been reserved for the Provincial Councils. On the one hand, many of the powers vested in the provincial councils by the 13th Amendment have been non-functional due to the lack of economic resources and non-devolution of those powers to the provincial councils. Examples would be the central government taking back powers over local level business taxation and the continuing non-devolution of even limited police and land powers. However, the concern of the government is that the 13th Amendment potentially vests these powers with the Provincial Councils, and an effective provincial administration can indeed demand them.

CONTESTED POWER

From the time they were established by the 13th Amendment in 1987, the Provincial Councils have been an arena of contested power. They were not a voluntary creation of the Sri Lankan polity or due to an internal recognition of the need for such provincial autonomy. On the contrary, the system was set up as an outcome of the Indo-Lanka Peace Accord which was in the nature of an unequal treaty signed by the governments of India and Sri Lanka. The Indian promise was to disarm the LTTE and end the ethnic insurgency, while the Sri Lankan promise was to implement the devolution of powers on the Indian model. But neither side was able to keep its side of the bargain. Due to the nature of its origins, the Provincial Council system has never been fully empowered by successive governments, least of all the present one. The resource base of the provincial councils has never been strong, and in fact, during the period of the present government, even the limited taxing power they enjoy has been further reduced.

So far the government has been able to forestall the threat of any provincial council making demands for itself as it has succeeded in forming the administration of all eight provincial councils to which elections have been held. However, there is one provincial council that comes across as a possible threat to the government’s domination. This is the Northern Provincial Council, to which elections have yet to be held. The government is now under severe international pressure to hold those elections, as a concrete demonstration of its sincerity in restoring normalcy to the former war zones of the country. President Rajapaksa has promised the international community that these elections will be held by September 2013. Given the current levels of estrangement of the Tamil polity from the government it appears unlikely that the government will be able to win an election in the Northern Province.

It is also unlikely that the government will be able to form the administration in the North in coalition
with other parties as it has in the Eastern Provincial Council. In the east, although the government failed to win the majority of seats it was able to form an alliance with the SLMC. The more likely scenario is that the Northern Provincial Council election will be won by the TNA which, unlike the SLMC, has been firm in refusing to enter into any sort of accommodation with the government. In these circumstances, the government’s concern would be that a TNA victory will invariably lead to a demand for the full powers laid out in the 13th Amendment to be devolved to the Northern Provincial Council. This could spark off similar demands from other provincial councils and would deal a fatal blow to the government’s plans to keep its centralized powers within its control as at present.

GREATER PURPOSE

The thrust of the government’s policies go against the devolution of powers that constitute the basis of the provincial council system. Shortly after the war ended, President Rajapaksa stated that his preference was for District Councils over continuing with the provincial council system. The government did not take this idea forward at that time in view of the opposition expressed by the Tamil parties and sections of the international community, including India. On the other hand, the centralizing ethos of the government continues. The 18th Amendment passed by the government as its sole effort at post-war constitutional reform has concentrated powers further in the Executive Presidency. The thrust of the proposed Divineguma Bill is to concentrate economic power in the Economic Development ministry. Therefore it would not be surprising if the government’s plan to abolish the 13th Amendment is only on hold for the time being, as some government spokespersons have indeed said.

Apart from the incentive to abolish the 13th Amendment deriving from its ethos of centralization, the government has another reason for pressing on with its abolition sometime in the future. The devolution of power to the Tamil-majority areas feeds into the insecurities of the Sinhalese majority. This is a fertile political ground for the government to sow the wind, in order to reap the whirlwind of Sinhalese nationalism. The desire of the Sinhalese majority to protect the unity of the country will override all other considerations, even those of economics. The evidence being given by the government that foreign powers and the Tamil Diaspora are plotting to revive the LTTE will sustain political support for the government. This suggests that the abolition of the 13th Amendment makes political sense to the government as it will be using the power of nationalism to sustain its electoral base with the Sinhalese majority.

However, it is also important for the government and the people at large to be mindful of international experience. The withdrawal of well established provincial autonomy arrangements in both Sudan and Serbia led to the partition of both those countries. The military coup in Cyprus and the refusal to give way to the democratic mandate in the eastern part of Pakistan led to military invasions by the neighboring countries in both cases. The consequences of one’s own actions need to be viewed both in the narrow and broader contexts. The greater purpose of the government in Sri Lanka must be to ensure that all sections of the population, including the ethnic minorities, feel a sense of economic empowerment and political belonging to a Sri Lanka that is united not only in geographic terms but also united in heart. It is to be hoped that the purpose of the government is a greater one than to win elections and stay in power.

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    Everyone knows that JRJ not only passed 13A but also joined N&E and arranged to hold PC election. And he made the PC functioned appropriately after elections as well.

    So, for Jehan to say that “But neither side was able to keep its side of the bargain” is a deliberate lie. I say Jehan said that to mislead his readers and to save LTTE rump and its proxies from being blamed and most of all to conceal the futility of PCs. Jehan should have written why N&E Provincial Council couldn’t function, continue and why it was dissolved by President Premadasa.

    Now that Jehan hadn’t written it, let me mention very briefly how it all happened. The Indo-Lanka Accord was signed on 29 July 1987. Accordingly, Sri Lankan Parliament passed the 13th Amendment to create the N&E province on 14 November 1987 in the most illegitimate manner. On 2 and 8 Sep 1988, President JRJ issued proclamations to enable N&E a single province.

    And election for N&E Province was scheduled to 19 Nov 1988. But LTTE and its buddies in the main Tamil parties and Tamil people in the North boycotted elections. With that EPRLF and ENDLF won all of the 36 seats in the north uncontested. Varatharajah Perumal, of the EPRLF became the first Chief and functioned in that capacity until 1st March 1990 when he was removed by President Premadasa for declaring N&E Eelam.

    I forgot to mention one important requirement of the Indo-Lanka Accord: That is a referendum should have been held by 31 December 1988 in the Eastern Province to decide whether the merger should be permanent or not. IPKF was Sri Lanka until March 1990 and was in charge of the East. So, they should have got JRJ to hold the referendum as scheduled. But they didn’t or couldn’t.

    Who is to blame MR Jehan Perera for not “… keep its side of the bargain”? I say, none but LTTE, its proxies and Tamil people. Now they want 13A plus plus in the most conniving manner just like pre 1976 Waddukkodai era. Don’t be naive Mr Jehan, the President MR is an astute politician who has seen enough and thereby knows how to play with little now and more later guys.

    Tell us; would LTTE have negotiated for less than Eelam had it won the war? No way. They would have just declared Eelam first. Likewise, I think we too have given LTTE, its proxies and Tamil people a solution at Nanthikadal for all their aspirations. There is nothing to negotiate on it. 13A is archaic part of it. Remove it or clip its wings for the time being. So, don’t accuse us of triumphalism because I am sure the government is ready to discuss genuine Tamil grievances and solve them without fuss.

    It’s just absurd to say, 13A is a part of our constitution. Indian constitution is said to have been amended 97 times for its 62 year life span. Indian parliament had brought in very many Amendments to its constitution because ruling by Indian SC disagreed with the government in power.

    Writing to ‘Divaina’ today, C A Chandraprema says that in 1951, Indian government faced a similar situation to Sri Lanka government is facing today. India introduced a list of acts that cannot be questioned at SC as the 9th schedule for its 1st Amendment to Indian constitution in 1951.

    Chandraprema says that in 1951 there were only 13 such acts in the 9th schedule but by now it has increased to 284. I bet, our SC would have to say; if it’s good for India, it’s good for us as well. MR should act before it’s too late.
    Leela

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      Leela, the yellow robed terrorist.

      Is it true that you are just like the classic lankan monkey a polygamist? Own up soon than later.

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    Jehan is going to lose millions of dollars foreign money from the LTTE lobby abroad. He is already 50% below his annual income and now trying hard to jack up his money bag. You said in 2007 that the LTTE was invincible and the supporters of the terror group will stand for it. NOw you are coming up with new slogan the danger of “ditching devolution… ” bs. Shouldn’t you be saying that this danger is purely for your income. Tamils are happy to live with the way they are without the LTTE, and they want the terror supporters to leave they are alone. So Jehan, it is time for you to respect what the Tamil people want not the LTTE supporters.

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    Kaputa,
    You say “Tamils are happy to live with the way they are without the LTTE, and they want the terror supporters to leave they are alone. So Jehan, it is time for you to respect what the Tamil people want not the LTTE supporters.”

    How can you say what the Tamil want?
    In the first place, are you a Tamil?
    If so, why did you select a psuedo name which is the sinhala word for crow? You might as well have chosen “kaka”.
    Even if you are a Tamil, on what aurthority did you speak for Tamils?

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    Leela:
    Read not to believe nor take for granted but to weigh and consider.

    “Writing to ‘Divaina’ today, C A Chandraprema says that in 1951,”…..is in the grave thanks to Nani way back in the 70’s.

    “To amend or not to amend”

    Palkhivala had a deep respect, indeed reverence, for both the constitution, and for the cardinal principles he saw embedded in it: “The Constitution was meant to impart such a momentum to the living spirit of the rule of law that democracy and civil liberty may survive in India beyond our own times and in the days when our place will know us no more.”

    Nani saw the constitution as a legacy that had to be honored while simultaneously being flexible. Quoting Thomas Jefferson, he said, the constitution must go “hand in hand with the progress of the human mind”. He was however a firm opponent of politically motivated constitutional amendments (His favourite quotation was from Joseph Story, who said: “The Constitution has been reared for immortality, if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, the people.”).

    The culmination of Palkhivala’s success before the Supreme Court came in the famous Kesavananda Bharati vs. The State of Kerala case [AIR 1973 S.C. 1461, (1973) 4 SCC 225]:

    Parliament had added the Ninth Schedule to the Constitution through the very first constitutional amendment in 1951 as a means of immunizing certain laws against judicial review. Under the provisions of Article 31, which themselves were amended several times later, laws placed in the Ninth Schedule could not be challenged in a court of law on the ground that they violated the fundamental rights of citizens. The protective umbrella covered more than 250 laws passed by state legislatures with the aim of regulating the size of land holdings and abolishing various tenancy systems. The Ninth Schedule was created with the primary objective of preventing the judiciary – which upheld the citizens’ right to property on several occasions – from derailing the Nehru government’s agenda for land reform, but it outlived its original purpose.

    In the now famous ruling, on April 24, 1973, a Special Bench comprising 13 Judges of the Supreme Court of India ruled by a majority of 7-6, that Article 368 of the Constitution “does not enable Parliament to alter the basic structure or framework of the Constitution.”. In the process it overruled a decision of a Special Bench of 11 Judges, by a majority of 6-5, on February 27, 1967, that “Parliament has no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights” (I.C. Golak Nath vs. The State of Punjab, AIR 1967 S.C. 1643, (1967) 2 SCJ 486) by stating that no specific provision of the Constitution was immune to amendmnent, but no amendment could violate the basic structure or inner unity of the Constitution.

    The court propounded what has come to be known as “the basic structure” doctrine, which rules that any part of the Constitution may be amended by following the procedure prescribed in Article 368, but no part may be so amended as to “alter the basic structure” of the Constitution.

    In 1975, shortly after the imposition of the Indian Emergency, a bench of 5 judges was hastily assembled, and presided over by Chief Justice A.N. Ray to determine the degree to which amendments installed by the government of Indira Gandhi were restricted by the Basic Structure theory. On November 10 and 11, the team of civil libertarian barristers – led by Palkhivala – continuously argued against the Union government’s application for reconsideration of the Kesavananda decision. Some of the judges accepted his argument on the very first day, the others on the next; by the end of the second day, the Chief Justice was reduced to a minority of one. On the morning of November 12, Chief Justice Ray tersely pronounced that the bench was dissolved, and the judges rose. In effect, the doctrine was applied to the 39th Amendment of 1975, which attempted, among other provisions, to pass legislative judgment over the 1971 election of Indira Gandhi.

    Seven years later, in Minerva Mills Ltd. v. Union of India, [(1980) 3 SCC 625], Palkhivala successfully moved the bench to declare that clause (4) of Article 368 of the Constitution which excludes judicial review of constitutional amendments was unconstitutional.

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      Mugabe,
      Thanks for your response. I must say, I am not a philosopher nut a simple Buddhist. As a Buddhist, I need not believe everything that I hear or read. Of cause, I ponder everything that I doubt.

      I only utilized Chandraprema’s simplified essay as an added impetus to enhance my views on the subject. I need not be engrossed myself to evaluate finer details of amendments to Indian constitution.
      Leela

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        Leela,
        What a sham you have made of it by speaking the truth and sandwiching it with lies like almost all politicians you said “enhance my views on the subject”, never mind.

        I am happily agnostic not a Gautama nutty to look for a black cat in the dark. Your faith: Belief without evidence in what is told by one who speaks without knowledge, of things without parallel.

        Ceylon received its independence on a platter because India got it due to the fact they had the guns, and London was blitzed. Ceylon followed the Indian constitution and law of evidence because of similarities. Ceylon/Lankan constitutional lawyers learnt a lot from “Nani” who challenged the greatest ever woman leader of all time Indira (see memoirs of Henry Kissinger on the creation of Bangladesh) and won for the sake of “Liberty against Tyranny”. Even greedy G.L.Peiris refers him as much as intellect Chosky who is a Parsi himself.

        Take care don’t keep trolling as a profession;)
        The only triple gems I know are truth, love and beauty.

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          Mugabe,
          You may not like when I come out straight. Verbose writing and jargon never communicate a message effectively. Get rid of that bad habit.

          Leave that apart, I say; those of you live in dread of seeing as atheists and therefore pretends to be the agnostic type in vogue, but you pray for the almighty even in daydreams. I’ve seen them Colombians doing that not in dark but in pure daylight. Then again, that was the legacy of colonialists sojourn here and learning Darvin’s theory and the scriptures of God’s men at the same time. For one thing; you are either theist or atheist; it is meaningless to fall in between.

          Words like God, Fear, Faith and Belief are all a part of your culture now. So, you people cannot appreciate anything outside that mold. Four noble truth or eight fold path to reach that truth that Buddha explained is beyond you.

          I pity for your soul. You need not be a Gauthama nut looking for black cats in the dark; fear the God whatever the form those messengers said it was. Pray for all of it none stop: I mean; Yahweh, Father, Son and Allah. You are though on the judgement day which they say is just around the corner.

          Leela

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          Leelaratna the Troll
          Two legged god men! Ha ha
          Four legged good two legged bad.
          The existence of god is not the issue because it is beyond man’s power to conceive.
          Plain English in this instance is not verbal verbosity as it is not linked to Johnsonian.
          Try to get a message across to your twisted a** licking mind is like pouring water on to a ducks back and it does not surprise because you live in the slum hole called sri lanka.
          Remember this we own you that’s the difference colony folk.
          Now keep off pathetic troll.

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    Jegan perera says,”The greater purpose of the government in Sri Lanka must be to ensure that all sections of the population, including the ethnic minorities, feel a sense of economic empowerment and political belonging to a Sri Lanka that is united not only in geographic terms but also united in heart”

    Well said!

    The country is far more important than the ambitions of polititions.

    The threat of abolition of the 13th Amendment will make more political sense to the government than actual abolition as it will be using the power of nationalism to sustain its electoral base with the Sinhalese majority.

    Once abolished the government may not have enough excuses to sustain nationalism!

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      Smart move throw away the last supper and bring in an all-encompassing 19 (clear out)

      To live in a civilized world some of the sections of 13 are valuable for Liberty of all citizens irrespective of cast,race & religion etc. and invariably should be implemented in 19.

      Either way its got to be done whether the fanatics like it or not.

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    The Rajapaksa administration is quickly shaping its tenure into a regime, with no respect for human rights and civic liberties. Those who think that it is excusable to suppress the threat of the LTTE don’t understand that when you lose your rights, it doesn’t matter if you’re Tamil or Sinhalese.
    My impression from this article is that the most direct way to over-run the Rajapaksa dominance, is to let him go all the way. His grip on power will become unsustainable and the grievances of the people (not just Tamil) will grow.
    It is also clear that is pointless to discuss in a civilized way with an authoritarian despot. Does he want to abolish the provinces? Is there any legal way to stop him? Let him go, the furthest he will venture, the highest he will fall from.

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      But Franco the fascist carried on till his death in a quite similar situation with ETA. Herein we have a familia of tyrants and the next in line. Franco used race, religion, patriotism all emotions as his weapon internally and externally anti- communism.
      In every country and every age, the priest had been hostile to Liberty. Thomas Jefferson
      How true with the yellow robe of terror that has befallen the land.

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    MR WILL NEVER ABOLISH THE 13TH AMENDMENT. HE KNOWS WHAT IMPLICATION THAT WILL BRING. HE WILL THEN END UP WITH DRAFTING A NEW CONSTITUTION. IF HE DONT THEN THAT WILL BRING UNWANTED INTERFERENCE IN THE COUNTRY PAVING WAY FOR A SEPERATE STATE IN THE NORTH AND EAST. IT LOOK LIKE HE IS HELPING VP WHAT HE WAS FIGHTING FOR THE LAST 30 YEARS.

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