23 August, 2019

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Defending 13th Amendment: What Does It Mean?

By Sumanasiri Liyanage

Sumanasiri Liyanage

At the moment, it appears that the forces seeking dilution of the 13th Amendment are in retreat due to two main reasons. First, it is sure that such a proposal cannot gain the necessary two-third majority in the Parliament because of the opposition of the left parties in the UPFA, Sri Lanka Muslim Congress, rebel group of the SLFP. Ceylon Workers Congress and independent Tamil MPs representing the estate areas would vote against the new amendment. Minister Vasudeva Nanayakkara in a press conference held in his ministry has warned the government that he would resign from his ministerial position had the government taken steps to abolish the provincial council system that came into operation in 1987. Secondly, India has warned that Indo-Sri Lanka Accord is an international agreement so that it cannot be breached unilaterally. Furthermore, Indian Foreign Minister, Salman Khurshid, has made it clear to Minister Basil Rajapaksa that the fully implement the provisions of 13th Amendment and to go beyond are imperative in achieving national integration. He also warned Sri Lanka not to do anything to dilute the provisions of the 13th Amendment. (The Island, July 6) In 1987 following the Indo-Sri Lanka Accord sign by Prime Minister of India, Mr Rajiv Gandhi, and President J R Jayawardene, for the first time in post-colonial Sri Lanka a two-tier system of government was introduced by enacting the 13th Amendment to the constitution. When the Sri Lankan government announced that the Northern PC election would be held in September 2013, a new debate on the PC system has begun. In spite of the absence of T-56, what we have witnessed today is a replay of the same drama that was played in the immediate aftermath to signing of the Indo-Sri Lanka Accord. The polarization of organized political forces in 1987 is shown in Figure 1.

The organized political forces are more polarized today than it was in 1987. However, it is interesting to note as that as far as the actors are concerned, there is only slight change as shown in Figure 2. At the moment of writing, the position of the Ceylon Workers Congress is not clear.


Defending the 13th Amendment may have two meanings. As a result of the enactment of the 13th Amendment and associated legislations, a new set of structures and mechanisms had been set up. Defending these structures and mechanisms is the first meaning of defending the 13th Amendment. Many believe partly because of the vested interests attached to these structures. An added reason is that nobody wants to upset the existing status quo. The second meaning is much broader than the first and means the defending underlying principles of the 13th Amendment process. When the defense is identified in this way, the structures and mechanism can be remodulated to make the principles more pronounced. In fact, those who stand for the proposed amendment (the third column of the Figure 2) seek to reject some of these underlying principles. What are those principles? I identify four below.

  1. Principle of shared and paired sovereignty: Sovereignty of the people is one of the key features of republican democracy. In good old days, political theory portrayed it as something absolute, indivisible quality. However, this idea has been seriously questioned in modern constitutionalism the main issue of which according to James Tully is to recognize and accommodate cultural diversity. Hence this has become one of the most difficult and pressing issues in constitution making. It has been in this context the notion of shared and paired sovereignty is advanced In relation to North Ireland, Kashmir and to many other places. The introduction of two-tier system is based on this principle although it had not been fully developed when devolution of power was introduced. 13th Amendment has introduced in a small way this principle taking into consideration the diverse nature of the societal landscape of Sri Lanka. The first section of the second Republican Constitution was however not amended to make it more specific and clear by keeping the word unitary intact and not inserting the word PC in the list of representatives of the people.
  2. Principle of subsidiarity: The most common and relevant usage of this notion refers to organizational and territorial principle requiring that decision-making and implementation be carried out in a space that is as close as possible to the people. This notion that passes democratic and efficiency criteria has increasingly been invoked to legitimize the setting up of lower levels of government. The post-colonial state in Sri Lanka was Colombo-centered and the 13th Amendment has changed this aspect of post-colonial governance to a very limited extent. In fact the effectiveness of this change has been substantially barred by the central government in the last 26 years. This is one aspect that needs an improvement.
  3. Principle of diversity and autonomy: If the constitution may be described as a power map of the country, in diverse societies the constitution should reflect this multiplicity and heterogeneity for the maintenance of peace and harmony in the long run. Hence it is imperative to offer all cultural groups some kind of autonomy enabling them to keep, protect and advance their cultural characteristics and capacities. Even one may hold the view that Sinhala and Buddhism has been the main stream of the Sri Lankan culture, history has shown that the multiplicity and heterogeneity has also been a character of the Sri Lankan history. Social groups require and seek some form of autonomy. Once again, 13th Amendment has given a limited accommodation to this dimension at least the Tamil population of the country is concerned.
  4. Principle of legitimacy: the legitimacy of the state depends not on its capacity to use coercive power but on the mechanisms and processes that make people think and accept that power is legitimate and supportive. In diverse society achieving this is always a challenging task. Hence a kind of ownership as far as state institutions are concerned is necessary in making the state legitimate. The setting up of provincial administration with powers that are necessary to take decisions that affect people on day to day basis through the 13th Amendment is a positive aspect even though the powers given are limited and ambiguous.

The entire project of Mahinda Rajapaksa government in relation to the 13th Amendment is to kill these principles making the state more authoritarian, Colombo-centered, mono-ethnic. Sometime back, I coined the word over-securitization of the state as one of the emerging features of the post-conflict Sri Lankan state. The attempt to amend the 13th Amendment after introducing 18th Amendment almost negating the 17th Amendment shows this strategy to transform the Sri Lankan state into constitutionally authoritarian state depending over-securitized foundation.

*The writer is a co-cordinator of the Marx School. e-mail: sumane_l@yahoo.com

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    The final but reluctant agreement to call the NPC elections while Basil R was in Delhi and all this before the arrival of Indian VVIP Shiv Shankar Menon are lessons to the regime setting up the dogs of war and the politicised Buddhist priests to pour into the streets does not work in the long run or sell in international diplomacy. It was not surprising to read Basil R as having said India had expressed her “gratitude” to the Rajapakse regime for calling the NPC elections – something that the local media influenced by the government broadcast. Trying to save face with a semi-literate populace after years of playing games and ground reality are two entirely different matters is something the more initiated will not fail to take note of.

    Why two PCs in the Sinhala South were dissolved while there was no controversy against the CMs concerned or the functioning of these Councils is one further proof sometimes otherwise unconnected heads must roll to satisfy the international image of the faltering regime.
    After all a resounding victory of the TNA in the NPC is widely predicted. This will look bad for the regime in the eyes of the world and therefore two PCs are temporarily sacrificed to prove to the world the Govt had won 2 out of 3 PCs. That the same Party and actors will be returned is basic although no one cares a tuppence for the huge and unnecessary expense.

    Oh! Democracy – what strange games are played in thy name?

    Senguttuvan

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    “Defending 13th Amendment: What Does It Mean?”

    Well, it means that King Makers like Hakim will make all possible noises to gain political capital out of it while in their hearts they will say “Dont give the buggers an inch”.

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