22 October, 2021

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Dangerous Games With Devolution

By M A Sumanthiran –

M A Sumanthiran

The Government of Sri Lanka recently revealed its agenda to further restrict minority freedoms and autonomy in the country. It seeks to: (1) repeal constitutional provisions granting people the freedom to determine administrative boundaries (2) amend the Constitution, so as to permit the Central government to freely and arbitrarily legislate on provincial matters — even without the consent of the people of a particular province and (3) remove altogether provincial powers over land and police. These constitutional features were first introduced through the Thirteenth Amendment to the Constitution, constituent to the Indo-Lanka Accord of 1987. Hence, the government’s agenda is in fact to dilute the Thirteenth Amendment.

The Thirteenth Amendment attempted to resolve Sri Lanka’s ethnic conflict by granting some measure of self-governance to the minorities while largely dispelling majority concerns over secession. On paper, it introduced the idea of “devolution” to an otherwise highly-centralised unitary state. The Amendment borrows heavily from the Indian Constitutional model, although it does not reach the level to which the Indian States’ exercise devolved powers. I have consistently maintained that we need to go beyond this Amendment to meet Tamil aspirations of autonomy and dignity. Yet, the full implementation of the Thirteenth Amendment is an indispensable first step to a sustainable political solution in Sri Lanka. The Sri Lankan government’s good faith — given its responsibility to the Sri Lankan peoples as well as its international treaty obligations to India — is contingent on fully implementing this Amendment.

The Thirteenth Amendment was the direct result of the Indo-Lanka Accord, an international treaty between India and Sri Lanka. The treaty acknowledges that Sri Lanka is a “multiethnic and a multilingual plural society” and that the majority Tamil-speaking Northern and Eastern Provinces are areas of historic Tamil habitation. In theory, it also limits the majority community’s ability to determine the fate of the minority communities, and seeks to create for them some space for self-governance. Underwritten by the Government of India, the agreement provides that:

1. Sri Lanka’s Northern and Eastern Provinces could merge upon a referendum among the people of those provinces

2. Provinces would have legislative powers through provincial councils and executive powers through a board of ministers, and a chief minister

3. Power, including those over land, would be devolved to the provinces

The Northern and Eastern Provinces were temporarily merged and the North-Eastern Provincial Council was constituted in 1988. However, the council was dissolved two years later and never reconstituted. In 2006, the Supreme Court determined that the merger itself took place through a flawed process, which resulted in the demerger of the two provinces. While the Eastern Provincial Council was constituted through elections held in 2008, the Northern Provincial Council has not been constituted since the demerger. Hence, the people of the Northern Province have not enjoyed any measure of devolution for over two decades.

For Tamils

Why do the Sri Lankan Tamils and the Tamil National Alliance oppose diluting the Thirteenth Amendment?

First, for all its inadequacies, it potentially provides a meagre but substantial bulwark against the majority domination of the minorities, including the Tamil minority. Despite devolution being meaningless or non-existent to date, the majority Singhalese Central government cannot legally force its decisions on the provinces in devolved areas of government — which cover aspects of land, policing, education, health care and broader economic policy.

Second, the Amendment performs a direct positive role by giving the minorities, and the Tamil community in particular, the potential for some level of self-governance. Under the Amendment, provinces, as opposed to the Central government, have some authority over citizen’s lives, providing some elements of self-rule. In essence, this means Tamils could potentially have decision-making power over Tamil issues.

Third, the Amendment provides some guarantees to the minorities in Sri Lanka that their status as regional decision-makers will not be diluted through demographic manipulation. Under the Amendment, minority communities of the Northern and Eastern Provinces still have the option of merging. This option is consistent with the notion that the North and East of Sri Lanka are, in the words of the Indo-Lanka Accord, “areas of historical habitation of the Tamil-speaking people.” Eliminating the ability of provinces to merge through referenda would thus be a blow to democracy and undermine the Tamil-speaking people’s struggle for internal self-determination.

India’s role

Why India opposes diluting the Thirteenth Amendment

First, diluting it is clearly unjust and undemocratic. India’s long-standing interest and concern for the well-being and protection of the rights of the Sri Lankan Tamils may be largely attributed to India’s commitment to upholding justice and democratic values in the region. Moreover, there remain strong, cultural, religious and linguistic bonds between Sri Lankan Tamils and the Tamils of Southern India, although the former are culturally and politically distinct from the Tamils of India. India’s entering into the Indo-Lanka Accord, which culminated in the Thirteenth Amendment, must therefore be seen as an attempt to ensure the safety, security, dignity and rights of the Tamil people of Sri Lanka. Hence, the dilution of the Amendment matters significantly to India.

Second, its dilution amounts to a breach of the Indo-Lanka Accord and is therefore a violation of Sri Lanka’s international treaty obligations to India. In the last three years, Sri Lanka’s President and Foreign Minister have repeatedly made false promises to India about fully implementing the Thirteenth Amendment and even “going beyond” it. While paying lip service to India, in practice, the Rajapaksa regime has steadily reduced provincial powers. The present move undermines the international stature of India and potentially sours diplomatic relations between the Indian and Sri Lankan governments.

Increases tensions

Third, it increases minority discontent and closes vital political space, thereby exacerbating the ongoing conflict in Sri Lanka. These outcomes only serve to increase tensions in South India, where cultural and linguistic affinities to the Sri Lankan Tamils remain strong. Hence, Sri Lanka’s and India’s peace and stability is substantially affected by the dilution of the Amendment.

The move is unjust and undemocratic, makes a mockery of Sri Lanka’s international treaty with India and threatens regional stability. In order to prevent this travesty, India must act decisively to request a formal explanation from the Government of Sri Lanka as to the reasons behind these attempts to dilute the Thirteenth Amendment. It should also impress upon the Sri Lankan government that such an act means breaching the Indo-Lanka Accord, an international agreement governed under international law. In the face of such wanton disregard for values, diplomacy and regional stability, one wonders whether extending support to the Sri Lankan government in the run-up to the Commonwealth Heads of Government Meeting in Sri Lanka later this year is appropriate.

India’s decisive response now to oppose any dilution of the Thirteenth Amendment is both morally necessary and politically imperative. India’s principled stand on this issue will no doubt reinforce its international reputation as a global power and the largest democracy in the world.

*The author, M. A, Sumanthiran (B.Sc, LL.M) is a Member of Parliament through the Tamil National Alliance (TNA), practicing senior lawyer, prominent Constitutional and Public Law expert and civil rights advocate

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    Terrific piece Mr. Sumanthiran. It is nice to have a leader and statesman from Sri Lanka who has common sense and respect for democracy and the rule of law. People like you will bring Sri Lanka out of the “Failed State” status and restore its greatness….

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    A well written article with facts and reasoning that does not sound arrogent but as a plea for fairness and right to equality.

    As Mr. Sumanthiran states 13A is not a solution for what the Tamils face but is a good start even then the govt in Col has shown it cannot be trusted and it never acts in good faith. Its not just the Tamils that suffered for the last 30 years. The whole country suffered and if Col still wants to play games then they have learnt nothing and all lives lost were for no reason.

    ‘It is nice to have a leader and statesman from Sri Lanka who has common sense and respect for democracy and the rule of law.’
    Playing the violin to the deaf makes little sense. As a member of a minority and to make it worse a key player is a party that is not willing to kiss the Maharaja’s ssa he wont be able to do nothing.

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      Burt:
      I think he is doing a lot. You are looking at a very powerful voice here…

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    We have again today that champion of racial zealots and frontline religious chauvinist Prof. Nalin de Silva, writing on the Midweek Review, once again challenging the intelligence of the educated Sinhala readership with customary falsehood – viz:- (1)…the Indo-Lanka Accord is defunct due to the failure of India to fulfill ANY of the undertakings on her part … (2) The high-caste Vellalars in the Tamil community were brought by the Dutch.

    India is not likely to take to (1) kindly. The coming weeks should make it reasonably clear what India’s mind is with regard to the callous manner by which the Rajapakses are going about their pledges sorrounding the 13th Amendment. If one were to understand GoI’s mood the carefully considered language of the Spokesman of India’s MEA and PM Dr. Manmohan Singh’s comments to the visiting TNA delegation leaves one with the impression India may soon come out of diplomatic niceties.

    As to (2) even semi-literate Sinhala students and others are unlikely to believe de Silva’s concoction NEP Tamils were a set of dalits until the Dutch showed up with the Vellalars. Is senility taking a toll of the good Professor’s thinking faculties?

    This standard stuff of this disgruntled academic, widely regarded as the intellectual Godfather of the JVP type of Sinhala-educated youth, to mislead students – lead to the death of thousands of youth during 1988/89. But the man continues regardless.

    It is understood he is also the author and/or co-author of the Jathika Chintanaya and the Mahinda Chintanaya. His regular twist of the history of the island, regular anti-Tamil and anti-Indian bile has an assured audience in the vulnerable unemployed graduates/students and the more radical political bhikkus. Even sections of the daily English media provide space for him more out of a sense of intimidation than
    voluntary.

    The Rajapakse Brothers and family cannot easily forget the role played by that notorious Buddhakakhita Thero, once considered in divine terms,
    and the popularity wave he succeeded in creating to SWRD. History has a strange way of repeating itself is something The Family should bear in mind when reaping political benefits produced by academic charlatans.

    Senguttuvan

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    however we don’t want a war again…we destroyed during last 30 years so…people like live in peace..we must get actions always against the LTTE…because some people are trying to generate again

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    Mr Sumanathiran says he wants autonomy and dignity.

    Not sure about dignity.

    Didn’t his Leader Sambandan’s God Son had total and absolute autonomy for thirty years?.

    Did Mr Sumanathiran who is a kick ass Lawyer as the young Diasporians would say, make it in this autonomous land?.

    Which area of dignity is he lacking?.

    If Sambandan and Sumanatiran having TNA Police to rule the North with all Common Property under their belt make them dignified, what about the half a Mil of their Tamil brethren living in Colombo?.

    Wouldn’t even Messers Sambandan and Sumanthiran who I am told are permenet residents in the capital lose their dignity when they come home?.

    According to Mr Sumanthiran all other eight PC dudes don’t have autonomy, because they don’t have their own Police and Titles to common land.

    Aren’t we the ordinary punters have enough problems with one Police at present?.

    Would nine of them plus the existing one make it better for us?.

    Once TNA Police take over,do we have to enter our name and address at the check point in Ommanthai on our way to and from Nagadeepa?.

    Would Mr Premachandran give us enough land to build the new Expressway so that we don’t have to take too much time off to go on Pilgrimages?.

    Will the Chinese be allowed to build the Freeway?.

    Would Mr Senathraja approve any Sinhalese to be appointed to the North let alone the Governer?.

    Until the ordinary punters who happen to be over seventy five percent of the inhabitant population are told in simple language that Mr Sumanathiran and Mr Sambandan have no hidden agendas , like defying the Govt, create a onflict, allow the Diaspra IC to dictate terms and last but not least, allow the Diaspora, Vaikos and Seemans to make the Eeelaam in the North, they will be nervous.

    And they willd demand that they be given the opportunity to decide through a referendum whether Police and Land Rights to nine CMs is the most desirable way forward to live in a peaceful and harmonious society.

    After all this great majority do not have the luxury of getting protection visas if the things get nasty.

    And they know the pain and hurt inflicted on them for three decades.

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      so the Leela writes the same garbage again hhahahaahaahahah (of course under the name of K A Sumansekra

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      Give them a chance to rule Sri Lanka and see the difference. We have been asking silly questions for the last 60 years and made a failed state.

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        This may be a good thing. After all the British left them in charge of the administrative system and they did a pretty good job.

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    A potential leader and a statesman who has a helicopter view in relation to ethnic issues of sri lank. you have done a god . I personally believe all communities in SL should live with peace and harmony and majority of the population believe so.

    BUT, the politician who play pity politics DIVIDE all. When we will get rid of this STUPIDITY.

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    ‘The Thirteenth Amendment was the direct result of the Indo-Lanka Accord, an international treaty between India and Sri Lanka’

    Why has the writer not mentioned that the Indo-Lanka Accord was forced on Sri Lanka at gun point? That an Indian destroyer was waiting at sea near Colombo. That the Indian Air Force invaded Sri Lankan airspace with its jets and ‘bombed’ the North with dhal packets, claiming that it was supplying food. That the Indian government warned Sri Lanka that any attempt to thwart the ‘bombing’ would be met by force.

    Are these matters not relevant?

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    Mr. Sumanthiran is a great politician to have around.
    It doesnt matter whcih party he represents.
    He is a really a leader material.
    If there are half dozen of his calibre in the parliament this regime wouldnt gone this far with its corruptions, deceptions, lies, manupulations ect.
    Its time for Mr. RW, Dr. Bahu, Mr. Sumanthiran & Ven. Sobhitha himi to come to one stage. Would be good if JVP change their idiology slightly, provided that they are genuinely interested in throwing this regime out for good.
    SL cannot afford to let this least Educated, least Knowledgeable, ‘Orrible looking, MEGALOMANIAC leader to run this country ANYMORE.

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    There is a point on which I disagree with Sumanthiran.

    We remember that the Indo Lanka Accord was forcibly thrust on us by India by intimidating the government of the day. The Vadamaraachchi operation which was about to finish off the LTTE in 1987 was prevented by India which looked at it purely from India’s selfish interest. India armed and trained terrorists to destabilize Sri Lanka long before the ethnic conflict reared it’s head. In fact it was India that instigated terrorism here. Sri Lanka’s interests did not matter to them. The Sri Lankan people were humiliated by India and they will not forget that perfidy for at least another generation or two. Therefore we do not have any obligation to seek India’s concurrence on any matter. India is not a friend and if the Indian government or Tamil Nadu is going to be offended, so be it.

    Instead of calling for Indian intervention Sumanthiran must make a bold statement that the devolution of powers to the northern provincial council will not be used for separation. Ask for all the powers by all means, but build trust. By appealing to India what is built is distrust.

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    Some questions I have:

    (1) National Security
    If there were one worry on the 13th amendment, it should be weather this will potentially give rise to a ‘break away’ Ellam state at ANY time in the future effecting the national security and sovereignity of Sri Lanka? We should not be worried about anything else.

    Even with Police powers, can the Central government do something to mitigate any risks? Does the Armed forces have a roll to play to balance power – and can it effectively counter this risk?

    (2) Reconciliation and Rehabilitiation
    Further don’t we have a responsibility of towards reconciliation and rehabilitiation with the Tamil community, post war? Will the powers devolved under the 13th Amendment be crucial in expediting the social, political and economic ‘catching-up’ the people of the north have to under go? This includes rehabilitation and reconciliation.

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    Quote “As Mr. Sumanthiran states 13A is not a solution for what the Tamils face but is a good start even then the govt in Col has shown it cannot be trusted and it never acts in good faith. Its not just the Tamils that suffered for the last 30 years. The whole country suffered and if Col still wants to play games then they have learnt nothing and all lives lost were for no reason.

    If 13A is not the solution why go for it at all? Just scrap it.
    There can be no start if it is no solution.
    THIS IS TYPICAL LITTLE NOW & MORE LATER……….
    How could one expect for colombo to act in good faith when TNA play games according to the rules of the diaspora & the church.

    Yes. We all suffered for 30 years and will suffer more unless God’s hand catch up with the Diaspora and neutralise them as there is no one else is capable.

    ALL WHAT SUMANTHIRAN DOES IS TALK … TALK AND TALK. WHAT WE OBSERVE IN HIM IS NEVER THERE IN REALITY. HE IS ANOTHER FRAUD WITH SWEET TALK.

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    Leela (Sumanasekera)is at it again. LOL
    Anyway who gives a hoot to a “B” who shoots her mouth at the water hole?
    Its just a cry to be recognized: here is a thought try to contribute something that has value without B’ing for the sake of B’ing.

    If you cannot get that then CT is not a place for you.
    Don’t waste our time and the space here you looser.

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    “If 13A is not the solution why go for it at all?”
    Because Rome was not built over night. Decades of discrimination cannot be corrected with one amendment to the constitution.

    “There can be no start if it is no solution”
    There will never be a solution it there is no start.

    “How could one expect for colombo to act in good faith when TNA play games according to the rules of the diaspora & the church.”
    If the rules makes sense and is within the laws of the state, what difference does it make as to whose rules they are?

    “Yes. We all suffered for 30 years and will suffer more unless God’s hand catch up with the Diaspora and neutralise them as there is no one else is capable.”
    You cannot see realty even when it hits you on your head. You suffered for 30 years because of your greed and fault of your leaders and Gods gift to you is the current leaders and their kith and kin that is going to rule you for the next 60 years. When everything is said and done Sri Lanka might just be a marking on a map, owned by China and India, and that is the future.

    Dont worry about the Church and diaspora they will do just fine.

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      Can a concept designed by a country that trained and financed a terrorist group to destabilize a small neighbour and create the conditions for intervention be called an ‘agreement?’ It is not surprising that the state of justice in Sri Lanka is what it is if this is the kind of legal principles on which its lawyers work.

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    The country had many avenues and international bodies to complain to if it had a issue with the agreement. It did not.

    It cannot say it was forced on something that it did not agree because other than the North it had provincial elections based on this agreement.

    All parties of the country contested these elections and not at one time call this agreement to question.

    Twentyfive years had passed, and this is the third President and no one questioned until they are been forced to have elections in the north.

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    K.A.Sumanasekara. For once I agree with you and I ask the same questions you ask of the TNA. You also ask for assurances. When have assurances been of any value? When have promises ever been kept? This applies not only to the Tamil leadership but to the GOSL as well.We have learned nothing, except the truth of the old adage ‘history teaches us that history does not teach us’!

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    Tamils are not the only people in Sri Lanka.

    Why don’t the govt ask from everybody in Sri Lanka whether they want the 13th amendment or not ?

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    [Why don’t the govt ask from everybody in Sri Lanka whether they want the 13th amendment or not ?]
    When I last checked Sri Lanka is a democracy. Its a govt of the people, by the people. for the people. So when a parliament decides it decides on behalf of the people. The 13th ammemendment was passed with a two third majority and now its part of the supreme law of the land.

    You want to change it or abolish it, put a bill through parliament, debate it and pass it with 2/3 majority without trying a backdoor approach.

    For everyone that is against 13A, what were you guys doing for 25 years, how many elections you had for prov govts under 13A? Now when the same thing that wwas given to every other part of the country is to be given to the North all of a sudden its bad.

    Sri Lankans might be stupid but the world is not.

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    Monitor your cashier to ensure that all your deals are scanned in correctly.

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