17 November, 2018

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Much Ado About Nothing

By Kumaravadivel Guruparan

Kumaravadivel Guruparan

Much Ado About Nothing: The Northern Provincial Councils, 13th Amendment and the rationale for demanding a Transitional Administration

The country and particularly the Tamils are obsessed with the prospects of a Northern Provincial Council election. The key question that is debated, though some what laid to rest by the reference to it in the UNHRC Resolution of 2013, was as to whether the elections will be held or not. The debate now in Tamil circles is about who should be the Chief Ministerial candidate. That an election for a constitutional body is something that has to be struggled and fought for only indicates the sorry state of affairs of post-war politics in this country. So much for the argument that LTTE was the only obstacle for the Sinhala polity to positively consider ‘state transformation’.

The Government has made the holding of the Northern Provincial Council elections a ‘high value commodity’ for the Tamils. By promising and breaching the promise and re-promising to hold it, the Government has made the Tamil community yearn for it.  The strategy seems to be to get the Tamils to ask, demand, struggle, fight for something so minimalistic; to get them to feel and identify with the Provincial Council as an institution that will solve their problems. The political leadership of the Tamils – particularly the Tamil National Alliance has fallen for this trap. It has become very difficult to get the Tamil polity to debate and discuss about what contesting in these elections might mean for the Tamil struggle for self determination and meaningful self-government. Most Tamils want to vote, purely to show their displeasure with the Government. No one wants to risk the possibility of a Government backed party winning the Northern Provincial Council election. Many Tamils actually think, quite mistakenly, that an elected TNA Chief Minister will be able to reign in the unruly Governor of the Northern Province. The defeatist mentality stemming from Mullivaaykkal reigns supreme and many actors are making convenient use of this collective despair of the Tamil people.

What does the 13th amendment have to offer to the Tamils?

A dispassionate but critical analysis of the content and form of the 13th amendment is generally lacking in our deliberations about the importance of the Northern Province Elections. The 13th amendment was drafted in a hurry and some suggest that it was drafted deliberately with internal contradictions leading to any  ‘inconsistencies’ and ‘contradictions’ being interpreted in favour of the central government.

Here is a short list of what I think are the main flaws of the 13th amendment:

a)     The 13th amendment sits within a unitary state framework which provides the background for interpretations regarding the working of the 13th amendment being tilted in favour of the Centre.

b)     The Governor, an appointee of the President, has to provide consent for any bill that has financial consequences, before it can be tabled before the Provincial Council. He also can delay any legislation brought before the Provincial Council in the name of purported unconstitutionality. This can only mean that the Governor has ultimate control over the whole of the legislative agenda of a Provincial Council.

c)       The Governor of the Province has plenary powers (appointment, dismissal and transfer powers) over the Provincial Public Service and exercises un-curtailed discretion over the Provincial Executive. (The Constitution in fact says that the Governor has the discretion to decide what is in his discretion). The Transfer of Powers Act of 1992 brought in by President Premadasa transferred all executive power of the Province to centrally controlled Divisional Secretaries to whom the Governor can give directions.

d)     The Provincial List, which contains a list of subjects devolved to the provinces, has lengthy descriptions of the subjects, in order to restrain the scope and extent of the actual devolution. The three appendices to the provincial council list contain in eight pages restrictions on three most important subjects of devolution: law and order, education and land. These appendices take away most of what appears in first reading to have been devolved as a subject under the list. Experience has shown that on all these three issues the provinces have very little or no powers.

e)     The Central executive can in the name of formulating ‘national policy’ make decrees on any subject ‘devolved’ to the provinces.

f)       State Land alienation, prime among Tamil concerns, continues to be vested with the Centre more particularly the President, vide Article 33 (d) of the Constitution[1].

g)     Police powers though appearing to be devolved remain with the Centre with most policing powers retained for the National Police and appointments to the Provincial Police Service being strictly controlled by the Central Government. Even the appointment of the DIG, where the Chief Minister and the IGP don’t agree, is a matter for the President.

h)     Subjects relating to the developmental and livelihood needs of the Tamil people are not ‘devolved’ to the Provincial Councils. For example. Planning is mentioned in the provincial council list but is also a subject in the concurrent list, which includes the ‘formulation and appraisal of plan implementation strategies at the provincial council level’.  The concurrent list has everything else that is important for the immediate reconstruction of the livelihood of the war-affected population – fisheries, agriculture, social services, employment planning at provincial level etc – the list is quite long. The concurrent list for all practical purposes is an appendix to the reserved list (which details the powers of the centre). On top of all this there is the unconstitutional, illegal Presidential Task Force, which has to approve every single developmental programme carried out in the North.

The particular political role given to the Governors in the provincial administration in the North and East adds to the agony and pain of the experience of the 13th amendment in the North and East. In the South the Governors are dormant. (The image that should come to your mind are retired politicians like an Alavi Moulana or a WJM Lokubandara) They do not interfere with the Provincial Council administrations. However in the North and East, wherein the Governor’s chair is occupied by two retired army personnel, the Governors make maximum use of their constitutionally granted power. The 13th amendment gives the Governor a choice as to whether s/he wants to be active or not. In the North and East the Governors act like Viceroys from an alien land. But the hard truth is that the Governors are constitutionally empowered to act like the colonial Viceroys.

Here is what M.H.M Hisbullah, then a Minister in Chief Minister Pillayan’s Eastern Provincial Board of Ministers, had to say in 2009 about the functioning of the EPC:

“I have spoken to Chief Minister from other provinces as well. The bitter truth for us is that they don’t face any of the problems that we face [with the Governor] in their provinces. They should at least give us the powers that the other provinces are allowed to enjoy. The Governor of the Eastern Province summons Provincial Ministry Secretaries and speaks to them and issues orders. He calls and conducts his own meetings. He has declared that he is fully in control of the subject of finance. He says that appointing power of even a health labourer is with him. Therefore even the little powers that have been devolved to us we have not been in a position to exercise because of the Governor’s intrusion in our work[2]

And guess what, Pillayan and Hisbullah were part of a UPFA coalition in the East. What are TNA’s chances then of running a Northern Provincial Council as per their people’s mandate? The Provincial Councils cannot impeach the Governor. They can only pass a resolution recommending to the President his removal.

The above should make it clear that the Provincial Councils are mere appendages to the Centre. As Prof Ranjith Amerasinghe has observed the relationship between the Centre and the Provincial Council is a principal – agent relationship[3]. The Provincial Council or the Board of Ministers have no self-agency.

Given the above, are the Tamils not entitled to ask the logical question, as to what we the Tamils stand to gain from the 13th amendment? Or what we stand to gain from an elected Northern Provincial Council? Can an elected Northern Provincial Council help the war-affected with livelihood support?, stop the land grab?, leave alone do anything about the release political prisoners lingering in prisons in the south? To articulate this sounds ‘moronic’ and ‘ultra nationalistic’[4] and worse sounds like ‘Kaluthaihal’ (donkeys)[5] for some pundits. Purely from a realist, pragmatist framework, I beg to ask the question, why is what we are saying irrational or illogical?

I do not understand why some people waste so much energy pressing for a ‘full implementation of the 13th amendment’, except of course in adherence to the liberal democratic principle that the constitution in a constitutional democracy needs to be given full force. (Extra-constitutionalism has become part and parcel of Sri Lanka’s constitutional culture and hence, sadly, the need for liberals to spend a lot of time developing a ‘serious discouse’ about the need to implement the constitution in full).  It is true that certain portions of the 13th amendment such as the establishment of a National Land Commission and a Provincial Police Division have not been given heed to, both of which have anyway been designed to ensure the dominance of the centre. But nothing changes in terms of the provincial council’s capacity to respond to the problems faced by the Tamil people. Even with ‘full implemetation of the 13th amendment the design related flaws of the 13th amendment that I have referred to earlier very much remain.

I also do not understand the talk about a ‘13 +’ or ‘beyond the 13th amendment’ or ‘building upon the 13th amendment’[6]. In addition to the point about the many minuses that have already been deducted from the 13th amendment (including the North East merger), 13 + is constitutionally unfeasible. The Supreme Court in its determination on the constitutionality of the 13th amendment clearly said that the 13th amendment was the maximum that one could do in terms of devolution within the confines of the 1978 unitary constitution. So any more pluses, the Supreme Court is likely to hold, will violate the entrenched unitary character of the constitution which cannot be amended without its being sanctioned by the people at a referendum. In short then, is impossible to add more things to the 13th amendment within the confines of the present constitution.

So who wants the 13th amendment?

The US Government thinks it can be a starting point. Asst Secretary of State Robert Blake said so in a press conference in Colombo in September 2011[7]. Ambassador Michelle Sison in her confirmation hearings said that holding elections for the NPC will be one among three steps that Sri Lanka can take towards reconciliation[8]. The US Resolution at UNHRC of March 2013 also makes a reference to the Northern Provincial Council Elections.  That India is pushing for an implementation of the 13th amendment and for 13+ is well known and documented. US and India are only asking the Government of Sri Lanka to deliver on something as minimalistic as the 13th amendment because they don’t want to push Sri Lanka too much. Fear that Sri Lanka will get further entrenched with the Chinese is one reason why US and India may be playing slow ball. India has also got the TNA to exhibit willingness to consider 13th amendment as a starting point or a reference point to a solution. (For example see Mr. Sambanthan’s ITAK National Convention Presidential address (May 2012) where he said that the TNA is willing to consider ‘a point above the 13th amendment’ as a starting point for a solution)

Dayan Jayatilleke understands the geopolitics and sees an instrumental purpose for the Sri Lankan state in calling for an implementation of the 13th amendment. In 2009 he wrote,  “The full, if reasonably graduated implementation of the 13th amendment is the cornerstone of our postwar relationship with India, the relationship with which is the cornerstone of our international relations”[9]. Nirupama Subramaniam of the Hindu seems to agree with Dayan’s assessment when she wrote for the Hindu soon after the Geneva 2012 vote that, ‘had Sri Lanka taken steps to implement the 13th amendment, India may never have associated itself with the UNHCR resolution.[10]

The important point to note is that Dayan is not really saying implementing the 13th amendment will benefit the Tamil people in the short or the long term. He is saying it will release Sri Lanka from international pressure or at least ease that pressure.

The Tamil Civil Society’s position on the 13th amendment

Since the provincial council system does not offer any solution to the immediate problems of the Tamil people, the Tamil Civil Society has taken the position to reject the 13th amendment as a starting point or even a reference point to a political solution. We see any promise of incrementalism as an empty promise. We also see any engagement with the elections as being a stumbling block towards finding a political solution. The Tamil Civil Society’s rejection of the 13th amendment, I would emphasize, is is not a reflection of ideological intransigence but is a reflection steeped in experience and reality.

No doubt, the Sinhala Buddhist establishment also would like to get rid of the 13th amendment. By rejecting the 13th amendment, the pundits say we are sending ‘gifts to the hawks’. But surely whatever the Sinhalese reject cannot be what the Tamils desire? Shouldn’t we be making our own assessments? One cannot, like Dayan again, hold the Tamil people to ransom by keeping on repeating that we have to adhere to the ‘democratic principle of deriving legitimacy from the consent of the majority of one’s fellow citizens’. When the Tamils feel that the State itself has lost legitimacy, invocation of the democratic principle within that state apparatus makes no sense.

As for provincial elections our stance in December 2011 was that the TNA should not directly take part, but at the same time work out strategies where by they make sure that the Provincial Councils in the North and East do not fall into the hands of pro-Government forces[11]. In July 2012 before the Eastern Provincial Council elections we requested the TNA to contest the elections based on a manifesto rejecting the 13th amendment and seeking a mandate from the Eastern Tamil Community for rejecting a demerged North and East[12]. The TNA responded by not issuing a manifesto.

It is in the above circumstances that the Tamil Civil Society has come out with the position that the North and East of Sri Lanka, needs a transitional administration. To call for a transitional administration should not be interpreted as a call for a separate state. The social and political transition of the Tamil people from an environment of war and oppression to an environment of peace and justice cannot be achieved under the present framework of governance with or without the 13th amendment. Given that the Government of Sri Lanka in particular and the Sinhala Buddhist polity in general, is reluctant to seriously engage with the political solution question, the Tamil people cannot be asked to wait, and hence an interim arrangement is of urgent necessity. Hence the call for a transitional administration.

Many ask as to whether the Tamil Civil Society’s position is pragmatic. As for our assessment of the 13th amendment – our assessment is one based on a realist analysis of the state of affairs. As to what we prescribe, if we are thinking of what is only possible, the options are very limited within the status quo. To be pragmatic should not be a call to learn to live with the oppression. To be pragmatic should not be a call to accept minimalistic solutions, which do us no good.

“Nothing in my view is more reprehensible than those habits of mind in the intellectual that induce avoidance, that characteristic turning away from a difficult and principled position which you know to be the right one, but which you decide not to take. You do not want to appear too political; you are afraid of seeming controversial; you need the approval of a boss or an authority figure; you want to keep a reputation for being balanced, objective, moderate; your hope is to be asked back, to consult, to be on a board or prestigious committee, and so, to remain within the responsible mainstream… For an intellectual these habits of mind are corrupting par excellence. If anything can denature, neutralise and finally kill a passionate intellectual life, it is those considerations, internalised and so to speak in the driver’s seat”.   –  Edward Said, ‘Representations of an Intellectual’, BBC Reith Lectures (1993)

*Kumaravadivel Guruparan is a Lecturer attached to the Department of Law, University of Jaffna and an Attorney-at-Law practicing in Jaffna. He is an active member of the Tamil Civil Society.


[1] The President, the 13th amendment says, has to do exercise this power on the ‘advice’ of the Provincial Council. Former CJ Sarath N Silva in a judgment claimed that the 13th amendment has created an ‘interactive’ regime with regard to state land alienation. But to put it quite bluntly the President doesn’t have to act on the interaction/ advice of the Provincial Council. The President can ask for the advice for constitutional sake, but then reject or ignore it completely. Nobody can question him for ignoring advice. For example what is the chance that President Rajapaksha will accept the advice of a TNA Chief Minister with regard to state land alienation in the Vanni?

[2] A.N. Siddic Kariapper (in Tamil), ‘The Governor intervenes to the detriment of the functioning of the Eastern Provincial Council’, Interview with MHM Hisbullah, Virakesari, 12 July 2009, ‘Samakala Arasiyal’, p. 5

[3] Ranjith Amerasinghe, ‘Provincial Councils Under the 13th Amendment – Centres of Power or Agencies of the Centre’? in Lakshman Marasinghe (ed), ‘13th Amendment: Theory and Practice’, (Stamford Lake, 2010), pp 106-132.

[4] Dayan Jayatilleke, “TNA President’s Avurudu gift to the hawks’ http://www.dailymirror.lk/opinion/172-opinion/28144-tna-presidents-av urudu-gift-to-the-hawks.html

[5] Kumar David, ‘The Irrelevance of India in Geneva’, http://www.eurasiareview.com/11032012-sri-lanka-the-irrelevance-of-india-in-geneva-oped/ (11 March 2012)

[6] Shri SM Krishna, the then External Affairs Minister in a Suo Moto statement that he made to both Houses of the Indian Parliament on 04 August 2011. http://pib.nic.in/newsite/PrintRelease.aspx?relid=73900

[7] US Embassy, Colombo, http://srilanka.usembassy.gov/tr-14-2sept11.html (September 2011)

[8] US Embassy, Colombo, http://srilanka.usembassy.gov/st-6june12.html (June 2012)

[9]Dayan Jayatilleke, – ‘13th Amendment: Why non-implementation is a non-option’ (13.06.2009) http://groundviews.org/2009/06/13/13th-amendment-why-non-implementation-is-a-non-option/

[10] Nirupama Subramaniam, ‘Lessons to Learn From Geneva’, The Hindu,  April 07, 2012. http://www.thehindu.com/opinion/lead/lessons-to-learn-from geneva/article3288136.ece

[11] Available on Groundviews: http://groundviews.org/2011/12/15/a-public-memo-to-members-of-parliament-representing-the-tamil-national-alliance-from-the-tamil-civil-society/

[12] Available on Groundviews: http://groundviews.org/2012/07/29/tamil-civil-society-memo-to-the-tna-regarding-the-eastern-provincial-council-elections/

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Latest comments

  • 0
    0

    Mr Guruparan,

    You quote Dr. Edward Said at the end of your piece. I presume you are not worried about appearing too political. And that you are not afraid of seeming controversial.

    You do not favour 13th amendment. Not even 13+. You are proposing a transitional solution. We know others who talk about it. They are hardcore Tamil seperatists looking for a backdoor to the Ballroom. In this case Ealam.

    What is the solution you envisage after that so called “Transition” is over? Many in Sri Lanka believe it is nothing but a prelude to Ealam. From which there will be no turning back. Are they right?

    Hope you are not one of those trying to con fellow Sri Lankans. Through ISGA, P-TOMS and that kind of cunning schemes to break up our country at the end.

    • 0
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      Roger harding aka ben hurling.
      Please let us go, we tamils need freedom. U and your sinhala budhism never going to let my people live in peace in our own home. Please stop your damn bloody nonsence. WE tamils had enough, Guru explained enough, if u dont under stand please shut up. we want our land back u sinhala modayas never going to learn from past history, you will never and past 4 yrs enough of your own true face. Hope whole world open their eyes towards our beloved people….

      • 0
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        Muthu

        Glad you are not a “Closet Ealamist”. Like Guruparan. Hiding behind academic jargon. When all he really wants is Ealam.

        Land in Sri Lanka belongs to all Sri Lankans. Not to Sinhalese, Tamils, Muslims or any others. I am afraid I am not in a position to give it you. Even if I wanted.

        Therefore if anyone should stop “bloody nonsense” it should be hardcore Ealamists. Such as yourself. Futility of that pipe dream was proven by a 30 year long, inhumane war.

        Now is the time to find ways to coexist in dignity and in mutual respect.

        Please do continue to subscribe to racist Ealam ideology. If you wish. Non violently. If you got nothing better to do. That right is protected by Sri Lanka’s constitution.

        Even though Rajapassa regime does not have much regard for our constitution lately. But that is a different struggle.

        • 0
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          If it is so why are the Sin Hala army evicting Tamils from there homes and giving it to Sin Hala settlers fishermen. It is not good enough to say it you should practice it too. Sri Lanka belongs to no one. Only to a few who matters. Others are at their mercy

      • 0
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        Who’s keeping you back? Your monoethnic Tamil dreamland is right there off our coast – chop down a few trees, carve out some boats and don’t let the door hit you on the ass on your way out.

        • 0
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          Chop trees cant because there are people tied to the trees.
          Carve out some boats cant because all boat only at Hambug Tota
          Let the door hit , it will never hit even the door had been looted removed.

    • 0
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      The prior question is: who speaks for Tamil Civil society?
      Guruparan does not and should not arrogate that role to himself. He is an extremist – is just like the LTTE youth, only worse because he has the brains.
      [Edited out]
      I would like to hear Tamil women’s voices, civil society women’s voices. This Guruparan does not represent the majority Tamil civil society attitude at all – and we Tamil women must speak up and confront him and his massive EGO!

  • 0
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    An excellent analysis by Mr Guruparan. Tamils living in SL and outside
    should consider the implications of asking for the implementation of the 13th amendment + or -.Why ask for something which is of no benefit for the Tamils living in the East and the North?.What is presently happening in the Eastern Province is an eye opener for those asking for the conduct of the Northern Provincial elections in the Northern province.

  • 1
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    Tamils want to rule themselves without any interference from the Sinhalese and the writ of the Sinhalese should end at the boundaries of the Tamil homeland. The legislature with a Tamil majority to enact laws should be supreme over any legislature with a Sinhala majority, to govern the areas under their control. If the Sinhalese can come up with a solution to accommodate this legitimate demand of the Tamils within a united Srilanka, it is well and good. Otherwise the only solution available for Tamils to live as first class citizens is to secede. The 13th amendment is woefully inadequate as it allows interference of the Sinhala controlled government into the affairs of the Tamil dominated council, either directly or through the Governor appointed by it, making devolution meaningless. Quite rightly Varadarajaperumal after being frustrated by Premadasa denying devolution, declared UDI. LTTE by it’s intransigence made the world believe that if LTTE is finished, the Sinhala people will agree to share powers with Tamils. Now with LTTE is gone, Sinhala people are being exposed as the root cause of all the problems in refusing to agree for sharing of power and territory with Tamils, which will result in intervention by the international community to grant justice to Tamils.

  • 0
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    Leon

    Provincial Councils are there to devolve power to local level to a certain extent. So that, people can manage their affiars at local level in a way they see fit.

    They are not meant to be and will never be a stepping stone to a racially purufied Tamil only Ealam.

    GOSL should hold an election to Northern Province. sooner the better. Make sure it functions the way it should in the aftermath.

    It will be a nightmare for hardcore, seperatist, racist Ealamists. And to the Sinhalese hawks.

  • 0
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    Those Tamils inducted to politics are aware that the Northern Provincial Council when constituted with little power or even no power will make a stir on the political scene. The office of Chief Minister can bring about a new dimension if the occupant is dynamic. If there be no Council but an interim arrangement, even so the character and capacity of the Chief Executive Officer will make a difference. A cypher will make the entity a minus. A respected personality extolled by the people can set the pace for a new wave.

    In this context the name of Justice C.V Wigneswaran already mentioned in the media assumes significance. He will lend lustre to the office. The position has no benefit to confer upon him. If he decides to come forward, it may well be said that Tamils are on the threshold of effecting a landmark. They will fulfill an ideal that Plato cherished. To use his own words:

    “Until philosophers rule as kings or those who are now called kings and leading men genuinely and adequately philosophise, that is, until political power and philosophy entirely coincide, while the many natures who at present pursue either one exclusively are forcibly prevented from doing so, cities will have no rest from evils,… nor, I think, will the human race.”

    Justice Wigneswaran meets the bill with fullest distinction. What is more, he satisfies the norms of Thiruvalluvar as well. What are they?

    “Uuli peyarinum thaam peyaraar saantraanmaiku
    Aali enappaduvaar” – Tamil

    “Those of sterling character will not swerve from rectitude
    Even if there be convulsion all round” – English

    “Solal vallan sorvilan anchaan avanai
    Ihal vellal yaarkum arithu”

    “One who is eloquent, is indefatigable and is fearless
    Can rarely be defeated”

  • 0
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    Mr.Guruparan,

    Thanks for exposing the foibles, frailties and fantasy in the 13th amendment. It was designed to be so and become so, from day one. I am led to believe that the Rajiv Gandhi’s government held out the promise that it would be given more meaning in practice and with time, with the support of the Indian government and its armed arm the IPKF. The TULF was involved in designing this charade and later made it an orphan, under pressure from the LTTE. It was a hopeless hope, that depended on a multitude of ifs, to be realised.

    However, this is history now. The PC system if implemented as it is in the north, will lead definitely to more problems. Would these problems lead to solutions or further complications? Would the complications lead to solutions or to unforeseen negative consequences?

    I hear today that Justice Wigneswaran is being promoted as a possible candidate for CM by the TNA. He is no doubt an experiencedv and respected jurist. He is also an outspoken man. Would his background permit him to make the best out of a very bad situation or complicate it further? Would he be able to convince the government to give him the same leeway that the Southern PC’s have, even in the present circumstances. How does this paranoid government views him now?

    The Ifs continue! Should we take it upon ourselves to walk into a quagmire we recognise, or avoid it wisely?

    Further, should not the Tamils seek new solutions in the face of what the the present PC system is? Should we use the present PC system to expose the dastardliness of the government or as a base from which to discuss alternatives?
    What are the possible alternatives? Can we discuss alternatives, without restarting a dialogue with the government? Should not the government at least lay own in outline, what it thinks is the alternative?

    Finally, what do you think is the alternative?

    Dr.Rajasingham Narendran

  • 0
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    13th ,13 plus or even 13 Plus Plus is not a problem as far as the great majority are concerned.

    As this learned writer has pointed out, Diaspora, GTF, TGTE and their prox TNA will never be happy with just a PC.

    When Blakes tell the TNA to go for the 13 and see what happens makes the majority a bit jittery.

    Why?.

    Will Sambandan adhere to the letter of the Law in running the PC ?.

    Or will he take Blakes advise and say this is not what we we want, and implement what he has been demanding all along?.

    Wouldn’t that pitch the Govt,squarely against the TNA, which this time is holding actual power of Goverenance?.

    If Sambandan declares unilateral self governance.( hasn’t one Preumal done it before) would the Blakes, Camerons, or Harpers going to send their forces to disarm Sambandan or the Srilankan Military Forces?.

    These are the questions that the great majority are interested in and stressing out to understand?

  • 0
    0

    13th Ammendment is just a ploy by Sri Lanka to shut the mouth that asks too many questions.The US or India will never reject it because asking too much from SL will push them more to China.I hope the 13th Ammendment will never see the light of day in SL.

  • 0
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    Thanks Kuruparan for educating us about 13th Ammendment

  • 0
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    Here, I would like to make a few brief comments on this piece and intended to make a detailed critique in few weeks time.

    1. No-one, from a Tamil nationalistic political perspective, justifies or defends the 13A with a view that 13A is the answer to the Sinhala-Tamil ethnic conflict. [On the other hand, Tamil nationalism is not a property of few personalities, on, how it must be defined or what is the contours of it.] The demand for the NP election and the participation of Tamil political parties in that process, comes “purely from a realist, pragmatist framework”, that is to begin with the process of normalization of day to day life and bring some economic certainty to the war affected populations in the Vanni and Jaffna. It is purely based on the principle, something is better than nothing.

    2. Even though the author claims that his argument was based on a “reflection steeped in experience and reality”, he has failed to mention that how a transitional administration can be *practically implemented* in the North and East. I am sure that the author has no illusions on the attitude of Sinhala population (roughly 75%) towards establishing a transitional administration to the Tamil speaking areas. He knows, as well as we know that, this can only be achieved via an external military intervention with a prolonged occupation of the island for a ‘nation-building’ exercise. I am leaving it to the readers to think for themselves, on the feasibility of such a scenario happening within the immediate-strategic-neighbourhood of an unfragmented India.

    3. Finally, the whole edifice of this so called ‘Tamil Civil Society’ needs to be thoroughly critiqued, on its entirety. The notion of ‘civil society’ is abused by the extreme nationalistic and conservative forces of the Jaffna establishment. Civil society cannot be a single monolithic group, it can exist only in the functioning of a multitude of organizations. Also there is nothing inherently ‘civil’ about civil society [at least on academic inquiry], BBS was right to claim that it is “part of the civil society movement led by monks”.

    Since the end of Cold War, it was the defenders of liberal-internationalism, who floated the idea of civil society as panacea for every problem in the world. I am not sure, how much liberalism that the ‘Tamil Civil Society’ is practicing or willing to practice; but one thing is sure that the liberal defenders of the idea of civil society will be horrified to see the demands of ‘Tamil Civil Society’.

    The following is one example to make the point about civil society’s civility-factor; people who can access this article, that deals with “how a robust civil society actually helped scuttle the twentieth century’s most critical democratic experiment, Weimar Germany”, are encouraged to read it, it is worthy to note that the post-war Tamil body politic has many resemblances to the Weimar Germany. In fact, Jaffna has a ‘Prussian problem’ but I am not suggesting a similar solution :)

    ‘Civil Society and the Collapse of the Weimar Republic’ by Sheri Berman, World Politics, Vol. 49, No. 3 (April, 1997), pp. 401-429.

    For a general critique on civil society, ‘Conceit of Civil Society’ by Neera Chandhoke. http://www.amazon.co.uk/Conceit-Civil-Society-Chandhoke/dp/0195661958

  • 0
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    An excellent analysis by Mr Guruparan thanks.

  • 0
    0

    Thank you Mr Kuruparan for an excellent analysis of the 13A.

    It is true that at face value, 13A is not going to solve any of the problem s faced by Tamils.

    It is also true that 13 A is a flawed legislation.

    Yes!The Tamils should reject the 13 A without any reservation.

    But What next?

    The Tamil Civil Society is calling for an interim Administration for the Northern and Eastern Provinces.

    For How long?

    Interim to what? Will there be any takers?

    Even if it succeeds,

    During the interim period,we hope that there will be negotiations with or without international participation.

    What is the probable outcome of such negotiation?

    We all hope and pray that it will be a federal solution?

    But even a federal system is a continuum.

    With pressure from Sinhala , Tamil and Muslim Communities, it will be a federal system with minimal powers to the federal units something like Indian quasi federalism!

    But the implementation is messy with two third majorities and referendums and the international pressure will ensure the failure in the long run like what happened to all the pacts

    The international pressure is like blackmail! Once the Gun is removed the tendency for the other party to go back not to the original position but further back! like what happened earlier!

    Further could be expect any support from the Left?

    From the moderate politicians in the South?

    From the bureaucrats ?

    Highly unlikely!

    Then during the day to day implementation , the bureaucrats and the politicians will continue to make every efforts to sabotage like what they now do in the case of 13A.

    On the contrary let us look at another scenario? Which begins with the elections to the Northern Provincial Council,

    Let TNA or any Tamil party not accept the 13 A and demand or plead for elections , but contest, win and assume powers in the newly formed NPC.

    The elected Tamil Chief Minister of NPC even without any powers will be at least like President Abbas of the Palestinian Authority?

    With considerable skill unlike Prsident Abbas,our Chief Minister could be able to influence the international Community, the left and moderate democratic forces among the Sinhala community and again unlike President Abbas slowly moves consolidating his stature among all communities move towards a desirable political solution for Tamils.

    Is it a dream?

    OK Let us dream!

    Remember the Tamils had already almost lost the Eastern Provincial Council!

    If the Sinhalese people are assured that there is no international conspiracy or no any sinister moves on the part of Tamils and it is really a win-win situation for all communities, then the outcome could be different!

    Now if we address your rhetoric Questions!

    What we the Tamils stand to gain from the 13th amendment?

    Or what we stand to gain from an elected Northern Provincial Council?

    Can an elected Northern Provincial Council help the war-affected with livelihood support?, Why not ?

    Stop the land grab?, Why Not?

    Leave alone do anything about the release political prisoners lingering in prisons in the south? Why Not?

    Further NPC can have a Governor like Hon Alavi Mouilana or Hon Loku Bansdara. Why Not?

    All these are possible without any amendment to the Constitution! No two third or Referundom, not even a simple majority is required!

    Furthermore a new vista of opportunity opens with the move for the abolition of Executive Presidency gathering momentum.

    In such a scenario the possibilities are immense. Even real federalism is possible!

    Let us think outside the Box and enter History,joint the mainstream and share in the democratic victories?

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    Sri

    A well thought out response to a fine article.

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    there is no point in talking about 13 or 13+.no election in northeren province going to be done by the GOSL before totally changing the demographhic pattern in north by rapid sinhala and muslim colonization.after that what ever the soloution they give will be under their control . thanks for mr.RISHAD BADURUDEEN opportunistic activities and try to get benefit to accombany GOSL in engulfing tamil people’s land in vanni.{who told muslims are innocent like him mr.asraf engulfed vast amount of tamil’s land in east and was able to make east for them.

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    Guruparan’s brilliant exposition presents a clear picture of the choices before the Tamils at this point of time. A Provincial Council or no and for what reasons?. In the alternative what is mooted is an Interim arrangement to create a viable and durable political contrivance. The hollowness of 13 A is convincingly argued. Spurning it for its impotence is also urged.

    The antecedents to 13 A should be noted. By 1983 Indo – Sri Lanka relations were severely strained. More accurately, JR – IG cordiality was frayed. The pogrom of 1983 provided the backdrop to punitive action by India. The removal of IG put paid to it in October 1984. Yet the momentum rolled on till July 1987 and the avant garde of the Tamils had to be decimated. The design was to make North Sri Lanka livable for the traditional political formation and South Sri Lanka safe for the governing party.

    An invasion was needed. A misplaced act was pursued mindlessly and without clear purpose. Between these two the Tamil cause got sandwiched. Yet a gift had to be made and that was 13A. Tamils never looked this gift horse in the mouth. Subsequent observation has convincingly revealed the horse’s toothlessness. Hence a search for the unconventional. Interim Administration is now the identified vehicle.

    With the legacy of disintegration of earlier centuries assailing and obsessing India’s mind, the framers of the constitution opted for rigorous centralization. The resultant product set it’s face against regional autonomy whatever the well publicized shibboleths. It riveted central authority, had a veneer of quasi federalism and was euphemistically called federal. It was against this suffocation that many an Indian state rebelled. Among others was Punjab. Immediately after the 1983 pogrom, the AKALI DAL sent a telegram expressing solidarity with the beleaguered Tamils. It made a safe journey and interestingly landed on this writer’s table!

    A distinguished and percipient Indian writer states in his book that India’s obsession with UNITY will work towards her FRAGMENTATION. With unexamined self-esteem and with myopic delusion, India idealized her state powers as perfect. They were prescribed as the overarching optimal steel frame for devolution to Tamils. No more powers to Tamils than what are given to the States of India became the unalterable norm. Why would JR reject it? Why should Tamils accept it? A standing army from India was needed to thrust it. Herein lies the tragedy 1987-2009.

    Guruparan quite correctly rails against the emptiness and the constrictions listing a few from a) to h). The tangled web ensnaring the nation can never be unraveled. The Gordian Knot can only be cut. India-Sri Lanka joint venture is 13A. It is the recipe for Sri Lanka’s bifurcation taking the cue as it does from India’s formula for disintegration. This imported stuff of defective manufacture is thoroughly untenable. Federalism much feared as a prelude to separation is the finest harbinger of unity. When units grow, the whole will flourish still more.

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    Kuruparan says there can’t be a thirteen plus. If so why India believed When Mahinda mentioned about going further thirteenth that is thirteenth Plus. will TNA answer?

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    IF – The big IF – President Rajapaksa holds the election in the North – take it and make it to become stronger in terms of devolution. This could be via international avenues or negotiations with the govt.

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      within unitary features of lankan constitutional set-up, very difficult what you expect. It will lead o square one of 30 years back

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    The APRC report provided a path to make devolution meaningful and resurrect a bicameral legislature. Why should it not be the basis on which solutions are sought? The MR who had at one time touted the APRC as the means to a home grown solution, has dumped its report in the dust bin. Why? Why does not the TNA take up this not -so secret report , as a starting point of discussions at the PSC?

    Dr.RN

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    The Sinhala mentality is that if they cant do it no body should do it. If they cant go to the Buddist temple no Hindu Christian or Muslim should go to their place of warship. If they cant be honest no body should. If they cant run a country or a province properly no body should run a province or a country. They are very jealous that NP may take a lead in good governance and prosper. That is the problem.

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    An excellent analysis of the 13th amendment. In a similar vein, many years ago, Nadesan Satyendra compared the 13th Amendment to a ‘comic opera’.( See http://ebookbrowse.com/13th-amendment-is-it-a-comic-opera-by-s-nadesan-mar-1988-doc-d247916850)

    You have also correctly identified those who seek the implementation or indicate an inclination to implement the 13th amendment as being motivated by the need to address international pressure and not the question of self-governance.

    Most importantly, you have demonstrated that Self Governance can never be realized within the confines of a unitary constitution.

    thanks for making this plain

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    Wimal Weerawanse, has today announced that he does not want PC elections in the noth. The President is waiting for his astrologer’s advice on a possible date. Has the astrologer already pronounced his verdict? Has the astrologer said that there are no good dates, because the times are very bad? Is there a connection between WW’s statement and the astrologer’s already pronounced prediction? Would WW go on a fast unto death next? WW is an accomplished political weather cock! Interesting times and intriguing developments! We the meekarakas/ erumais/buffaloes of course do not need astrogers to tell us that the times are bad. We can feel it in our bones!

    I suggest the northern PC should be held because the campaign leading upto it can become an open forum to reveal the truth about the last war and the preceding ones. The likes of Mavai Senathirajah, Suresh Premachandran, Douglas Devananda, GajendraKumar Ponnambalam, Siddharthan, Sri Tharan ( Kilinochchi MP ), Kuthirai Gajendran, Kumaran Pathmanathan, Col. Karuna, Pillaiyan and their kind should be be given the chance to contest or campaign in these elections. On opposite sides of course ! Even VP may appear to campaign along side with Sri Tharan, the Kilinochchi MP! The government should throw into the campaign the men who leading the armed forces, who are retired now. Gen. Sarath Fonseka should laso join in. The campaign can be quite revealing and more truth eliciting than any Truth and Reconciliation Commision, ever could be. The government will lose and the TNA will win, but we the people will know what is being demanded as the TRUTH in its rawest details. It will be an open court, where the people will be the judges! This may be the catharsis we need. The greatest bonanza would be that we will know the type of men and women who want to lead us!

    However, the election itself will be as violent and cruel as some the candidates and campaigners would be. How could the people be protected during the campaign?

    Dr.Rajasingham Narendran

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      Why can’t the camel doctor, who is also an adviser to the KP mafia (http://nerdolanka.org/?page_id=297), encourage his minions to contest in an election expected to be violent and cruel?

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        Raghavan,

        I had not seen this listing before, although I had given a message on the founding of NERDO on the basis of its objectives. II would have been also happy to help NERDO ( or for that matter any organization) with aspects of its objectives, where my expertise lay. What was important to me was to lend a hand to the war-affected in whatever way I can. Unfortunately ( or was it fortunately? ) , I have not been approached for technical or other advise, ever. I have been wondering why?

        Further, do you understand the word irony? What I stated is a tongue-in-the-cheek remark on the type of men who are yet playing a role in our life.

        What has this got to do with camels?

        Dr.Rajasingham Narendran

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    What do you mean by ‘Active Member of the Tamil Civil Society’? Who decides the Tamil Civil Society? Guruparan here has shared some legal and practical problems in the 13th Amendment. But, he couldn’t give any practical alternative other than an imaginative solution which can’t be made in this part of the world. In that point of view, all his academic analysis is a total waste. Come out with practical and viable alternative if you are not accepting 13 which has gathered a good support from the Southern Political Leaders as well first time in the history.

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