27 October, 2020

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Discourses On The Thirteenth Amendment: Addressing Misconceptions

By M. A. Sumanthiran

M A Sumanthiran

Recent debates surrounding the Thirteenth Amendment to the Constitution reflect the extreme polarization of Sri Lanka’s political discourse. While the issue is indeed emotive, we have nothing to gain from anything but a clinical approach to these questions. If reason is to prevail in our politics, then reason must prevail in our thinking – and our thinking about the Thirteenth Amendment is a good place to start.

The Thirteenth Amendment provides for a measure of devolution to the Provinces through Provincial Councils. The Amendment however, is applied within the super-structure of the country’s unitary constitution. The powers devolved under the Thirteenth Amendment are indeed meagre. There is provision for a measure of powers of land, law and order, education, health and similar subjects – but even in respect of these, the centre retains a great measure of control. For example, the subject of “national policy in respect of all subjects” lies with the centre, and notwithstanding some limitations imposed on the use of this ruse by the Supreme Court in times past, it has been invoked widely, illegally and most inappropriately by the centre to take back devolved powers. In fact, many of the executive and legislative powers devolved under the Amendment are virtually impossible to exercise fully and effectively if the centre chooses to impose roadblocks. This could be instanced by gubernatorial and presidential interference with the statute-making powers of the Provincial Councils, or through the Governor refusing to cooperate with an elected Board of Ministers.

Introduced in 1989, the Thirteenth Amendment was clearly an improvement on the existing 1978 Constitution in respect of devolution. This is not so much a comment on the virtues of the Amendment, as much as it is a critique of the 2nd Republican ’78 Constitution, which did not contain a single devolutionary feature. Instead, the ’78 Constitution – like its predecessor ’72 Constitution – needlessly entrenched the unitary structure of the state. As Nihal Jayawickrama notes from his personal involvement in the 1st Republican Constitution’s drafting process, even Colvin R. de Silva’s initial draft of the ’72 Constitution did not include the word “unitary”. However, political pressures prevailed, and as Jayawickrema notes, “[t]his impetuous, ill-considered, and superfluous embellishment has, for three decades thereafter, stultified every attempt at a peaceful resolution of the ethnic problem.”

In this regard, I wish to respond to three distinct positions articulated by commentators in respect of the Thirteenth Amendment. The first argues that the Thirteenth Amendment is progressive, and that devolution is necessary, but that any devolution must necessarily be tethered to the unitary structure of the state. Under this position, the Thirteenth Amendment – plus and minus some details – is desirable, but represents the outer perimeter of the extent to which devolution must be envisaged. The second position – articulated by a number of extreme opponents of devolution – calls for the repeal of the Thirteenth Amendment, arguing that it compromises the unity of the country. The third – emanating from some quarters within the Tamil community – argues that the Thirteenth Amendment must be totally ignored, if not by Tamils, at least by the TNA!

Turning to the first of these propositions, its proponents are critical of prospective attempts by the government to dilute the Thirteenth Amendment. They hold that devolution through the Thirteenth Amendment is positive, but that any devolution extending beyond the contours of a unitary structure are unacceptable. This is an inherently self-contradictory argument. A fundamental feature of the unitary state is that Parliament cannot alienate legislative power, and that it retains plenary power – albeit with some procedural safeguards, such as that of a two-thirds majority – to change the constitution. This includes, therefore, the power to roll back any and all devolutionary features. Thus, the government’s recent plans to dilute the Thirteenth Amendment are inherently an exercise of a unitary power. In a non-unitary state, the constitution may well have imposed substantive checks on a powerful, populist parliamentary majority from undermining certain salutary features within it. These substantive checks cannot be imposed under a unitary constitution, because a unitary state implies a Parliament that cannot share its unilateral power to effect changes to legislation and the Constitution. Thus, our call for Sri Lanka to move beyond the unitary constitution is borne out of a simple desire to prevent a unilateral roll back of devolved powers. How may majoritarianism be overcome by classically majoritarian means? Simply put, what’s the point in negotiating in good faith for a permanent solution to the ethnic problem if the next government – or even the same government – may unilaterally undo previous progress?

The second proposition I identify is an extreme and, I dare say, racist position. For the proponents of the idea that any devolution is bad, the idea of sharing power with the minorities is anathema. The minorities must be subjugated and forced to accept the dominance of the Sinhala-Buddhist majority. Those who do not submit are labeled separatists, and are thus liable to be targeted. It is sadly, a position to which powerful actors within the regime subscribe. While it is comforting to witness a measure of surprising push-back to this growing extremism even from within government ranks, we are nevertheless confronted by the reality that it is this ugly bigotry that has prevented any form of progress on issues of power-sharing.

The third proposition is one that puzzles me the most. The TNA’s critics from within the Tamil community – however electorally weak – have presented a rather bizarre proposal. According to its proponents, the TNA must boycott the Northern Provincial Council polls, and support an independent list of candidates instead! The position needs only to be restated for purposes of rebuttal: it is so self-defeatingly absurd. Assuming purely for the purposes of argument that a TNA boycott would help delegitimize the Thirteenth Amendment and that this is a positive outcome, it is impossible to conceive of how a TNA backed campaign for an independent list would not demolish the very purpose of a boycott. If the TNA’s Tamil critics were to suggest a total boycott, the position would be at least internally consistent, if not wise. But in suggesting an oblique form of TNA participation at the NPC polls and a halfway boycott, the proponents of the idea themselves recognize that a total boycott would have ruinous consequences.

In conclusion, my own assessment of the Thirteenth Amendment is that it is meagre, needs substantial changes, and is easily abused. Moreover, the existing unitary structure of the state has rendered the Amendment at risk of unilateral abandonment, and prevented the evolution of an acceptable solution. In fact, the failure of successive governments to even hold Northern Provincial Council polls, as well as recent efforts to undermine the Amendment, point to the urgent need to ensure a power-sharing agreement that goes beyond the Thirteenth Amendment and the asphyxiating confines of the unitary state structure. However, the Thirteenth Amendment is indubitably an improvement on the 1978 Constitution. It is also the supreme law of the land, and a return to the original 1978 Constitution will be totally undesirable. For these reasons, I do not consider the Thirteenth Amendment a starting point, middle point, or end point to a genuine political solution. Those terms are too loose and imprecise to hold any tangible meaning. Instead, within the prevailing political and constitutional context, I consider the Thirteenth Amendment a necessary albeit insufficient condition for commencing a process of evolving a permanent, durable and honourable solution to Sri Lanka’s intractable ethnic problem.

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

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Latest comments

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    .
    The unlucky “13”.

    :-)

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    It is quite clear that the third position mentioned above, a half-way boycott is neither here nor there and is an absurd position and has to be totally abandoned by all Tamils. What is needed is a new constitution which avoids the word ‘unitary’ in order to permit genuine devolution to the periphery. The argument that Sri Lanka is too small a land for devolution is meaningless when smaller pluralist countries have devolved power. Even the reference to the Northern province as a ‘large swathe of land’ by a government minister exposes the humbug.

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    Sumanthiran, why don’t you are neutral group which has all communities as members and who are for undivided Sri Lanka and for democratic governance make a full page write up on the 13th amendment and distribute at all public locations and also through internet.These handouts should be in both Sinhala and English languages and should be distributed not only in Colombo but every nook and corner of Sri Lanka. From what we know most of Sri Lankans do not understand fully the implications of the 13th amendment and the opposition parties are not doing a good job either.

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      agree strongly

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    “Vellalas Rule” says Professor Hoole.

    Recent ditching of a high calibre candidate, selected by the Vellala Chief himself ,and the reasons for his disqualification point to two significant areas of concern for the inhabitants.

    Would the Vellalas in the future NPC tolerate or accomodate any thing Sinhala Buddhist?.

    Will there be any power sharing with the Christians whom Professor Hoole identified and reffered to as the low caste and low class inhabitants?.

    Although the current TNA “Cabinet” which cliams the total ownership of the North,includind all flora and fauna, doesn’t have any non Vellalas.

    Is that comforting for the poor ex Captives who are the great majority in the North at present?.

    Wouldn’t it be good reconciliation if the ex captives’ current Leaders are given a sympathetic year, rather than calling them Traitors and demanding the the Govt to bring in their Western mates to Supervise how the ex captives and their reps behave from day one right up to the polls declaration?.

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      Sumana mama im suprised you didnt bring the name of Sambandan (apparently you have a crush on his as per someone here) in this article….why is that did u both have a lovers tiff my man as you always bring sambandans name as if your both lovers!

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      Are you saying Prof Hoole is correct? Do you know stuff he wrote about MaRa and Sinhala Buddhists?
      :-)

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      K.A Sumanasekera

      “Would the Vellalas in the future NPC tolerate or accomodate any thing Sinhala Buddhist?.”

      Certainly not, rightly so.

      Anyone in his/her right mind should not tolerate or accommodate Sinhala/Buddhist anywhere in this island.

  • 0
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    Great analysis by Sri Lanka’s great man…

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    The analysis is valid.

    What will really facilitate progress in devolution is for the TNA by word and deed to convince the non-Tamil citizens of Sri Lanka of its committment to the sovereignity and integrity of the country.

    Promoting itself as a champion of ‘our people’ and exerting international pressure on the Government only serves to feed the fears of the majority community.

    Any devolution resulting from the TNA’s current approach will be ‘conceded’ grudgingly; not in a spirit of future cooperation.

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      Spotlight,

      If the majority community is sufficiently large hearted to accept that the country is pluralist with three or more ethnic groups all of which to be treated to have equal citizens,then nobody will seek any international pressure and there will be no need for same!

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        There is no problem with the ‘Majority community’ as a whole as such. The real problem are the misleading few politicians who use their popularity among the Sinhala people to give them wrong ideas.

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    As a Jaffna landlord Sumanthiran must feel ‘asphyxiated’ when land cannot be controlled as per his wishes. I would just ‘let go’ obsession with controlling land and its low-castes. The world began moving in the opposite direction long time ago.

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    There is also a fourth position:

    The 13th amendment in its entirety to be implemented. The built-in checks and deliberate constrictions with respect of the PC system to be held in reserve and taken recourse to only if extreme circumstances warrant them, instead of the essential principles/elements underlying the devolution intended, being withheld or neutered. This would imply that the Governor becomes a figure head of sorts, unless he takes back the power delegated to the PC and CM through him, under extreme circumstances.

    Further, the impending NPC elections have given rise to two positions among the Tamils:

    1. NPC to be made a front for the next phase of battle to prove further, the malice of the government and intransigence of the ‘Sinhala-Buddhists’- an adversarial approach.

    2. NPC to be made an instrument to get the best out of the present PC system and articulate and negotiate improvements, while simultaneously demonstrating that it will not be the substitute path to Eelam. The ‘HOPE’ is that this will be giant step towards reconciling communities and achieving a united Sri Lanka- a conciliatory approach.

    Dr.Rajasingham Narendran

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    First Leela must understand there is no such thing as Sinhalla Buddhist.Sinhala is a race Buddhism is a way of life thught by a great soul. “Sinhala Buddhist” is only a catch phrace used by racist targeting the emotions of the uneducated and ill informed.

    If real Buddhism can take root in the west there is no reason why it will not take root within the Tamil community but for that to happen Buddhism should get rid of the racist monks and so called Sinhala Buddhist attitude.

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      You are right on the money in your first bit, Burt.

      They can’t even write a Weather Report without having a dig at Sinhala Buddhists.

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      Many centuries ago most of India including Tamils in India & Sri Lanka embraced Buddhism, but the Bhikkus must have turned them off – and they became Hindus.

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    Dr RN,
    You have articulated very well (which I can’t do.)
    For the (2) – after the war govt. has not don’t enough and not doing enough to trust this govt.

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    A poem says it all. Courtesy Tamilnet.

    “Full text of the article titled ‘Rape: Sri Lanka’s Weapon of Genocide’ jointly authored by Dr. N. Malathy and RM Karthick follows:

    My fellow Tamil women
    What have you done for peace in the isle?
    Take off your clothes and open up your vagina
    For the Sinhala warriors of the land of Buddha

    – Poem by an Angry Tamil Woman”

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      There are some problems with some Tamils. They cannot think beyond the private parts and their deployment. Bothered is another group that cannot imagine that there are persons yet who cannot be bought. with money or sexual favours. This a tragedy. This poem depicts the low depths to which the Tamilnet has sunk.

      Dr.Rajasingham Narendran

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    The events of 2009 were a seminal moment in defining the future of our country. The 13th amendment and indeed the constitution itself are now out of date and, arguably, not fit for purpose to meet the vision of our President, of a country where there are no minorites and opportunity exists for all. The time has come for good men, and true, to set themselves to the task of crafting a new constitution that will reflect this vision. The first hurdle will be the dismantling of the cabinet and its parasitic appendage of ministers that has made it the laughing stock of Asia. Aye, there’s the rub; Our President may have successfully led our security forces to defeat the scourge of terrorism, and his subsequent popularity in the country is legendary, but he will find the task of cleaning the ministerial stables in his own backyard a battle too far. Surely, that will be the ultimate test.

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    Mr Sumanthiran is right. The thirteenth amendment was a stop gap measure.It is not permanent solution to the ethnic problem. Bensen

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