16 December, 2017

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Resolving The Tamil Problem Through An Amended 13th Amendment

By R.M.B Senanayake –

R.M.B. Senanayake

The Government and the Northern Provincial Council have got off to a good start displaying much goodwill to each other. It is now necessary to make the Northern Provincial Council work. All persons who wish peace and good governance will be happy indeed. But there are several obstacles and challenges that have to be ironed out if the Northern Provincial Council is to function in a manner that will fulfill the expectation of the people of the North and make them willingly give up the demand for a separate state put forward by the Tamil Expatriates.

There are several clauses in the 13th Amendment which could be interpreted in more than one way. For example the 13th Amendment says that the Executive power of the Provincial Council shall be exercised by the Governor either directly or through the Ministers of the Board of Ministers or through officers subordinate to him in accordance wi8th the article 154F of the Constitution. If the Governor wishes to exercise power on his own initiative there could well be differences of opinion and even conflict. Such a situation arose in the Amparai District with regard to teacher transfers where the Governor on the advice of the Member of Parliament for the District allegedly reversed the orders of the Provincial Council Minster in charge of the subject.  One hopes that such conflicts will not arise in the functioning of the Northern Provincial Council.

Another provision in the 13th Amendment is with respect to the allocation of moneys to the Provincial Councils. The 13th Amendment provides for a Finance Commission which includes the representatives of the Provincial Councils. The relevant article of the Constitution states is as follows:

Finance Commission

154R. (1) There shall be a Finance Commission consisting of –

(a) the Governor of the Central Bank of Sri Lanka;

(b) the Secretary to the Treasury; and

(3) The Government shall, on the recommendation of and in consultation with, the

Commission, allocate from the Annual Budget, such funds as are adequate for the

purpose of meeting the needs of the Provinces.

(4) It shall be the duty of the Commission to make recommendations to the President as

to –

(a) the principles on which such funds are granted annually by the Government for the

use of Provinces, should be apportioned between various Provinces; and,

(b) any other matter referred to the Commission by the President relating to Provincial

finance.

One hopes the Budget for 2014 which will be tabled in Parliament next month will include the allocation of funds to the Provincial Councils along with the Recommendations of the Finance Commission as provided for in the 13th Amendment.

National Land Commission

Appendix ii of the 13th Amendment refers to Land and Land Settlement. It states that state lands will be vested in the Republic but there are constitutional provisions regarding land use and land alienation where the President and the Provincial Council are to be guided by the Land policy established by the National Land Commission. So it is essential to establish the National Land Commission and the Technical Secretariat to service the Commission as provided in the 13th Amendment. Land laws in our country are complex and require experts to deal with the subject. There is also the vexed question of the needs of the Army to establish camps in the North. While the Army has a right to establish camps anywhere in the Island yet the local population needs reassurance that the Army will not interfere in the day to day life of the citizens and that they can enjoy the same degree of freedom as those in the South. The Army must follow the same pattern of conduct as in the South.

The recent decision of the Supreme Court that all land belongs to the state which is treated as equivalent to the Central Government makes it urgently necessary to appoint the National Land Commission. These institutions are the channel through which consultation and co-operation is to be ensured in the functioning of the Provincial Councils and they cannot be deferred any further.

If the Tamils are to willingly give up the demand for a separate state permanently they must feel that their freedom and rights are safeguarded. So there should be amendments to the 13th Amendment.

Asymmetric devolution

There is however no appetite for devolution of power to the Provincial Councils in the South. The cost of our political Establishment is very high and the economy cannot afford it. We have really duplicated a bunch of politicians at the provincial level who are just copies of those at the National Parliament. These Provincial Council members in the South have no power for all the funds are disbursed directly by the Central Government through the Minister for Economic Development. These Provincial Council members of the South are lotus eaters doing nothing to earn their keep. They are also a lawless bunch.

The present regime does not want to delve power to them for there would be little for them by way of power and resources if the Provincial Councils in the South were to effectively exercise power. The case of the late Berty Premalal Dissanayake would have shown the ruling regime that if the Southern Provincial Councils exercise real power they would constitute a threat to the Ministers of the Central Government  as they seek to assert themselves and emerge as regional political leaders. They could thereafter pose a threat to the ruling party and its exercise of power. Our political parties are held together purely by the self interest of the politicians and if substantial power is given to the Provincial Councils then many politicians would prefer to be members of such Provincial Council rather than be members of the National Executive. Mr. Dayasiri Jayasekera has shown that the post of Chief Minister in a Provincial Council matters.

Ranil Wickremasighe proposed asymmetric devolution. There is a strong case for it at least on grounds of economy for it will reduce the cost of the political Establishment. Any devolution of power in the South should be to the levels below the Provincial Council such as the Pradesiya Sabhas although the way they are presently constituted may be worth reviewing as proposed by the Wanasinghe Commission on Local Government in the 1990s.

The case for Devolution of Power really arises in the North and East where there is a demand for it from the Tami minority who feel they have been discriminated against. But the devolution to the North and East could have been linked to the giving up of the Tamil demand for separation. An agreement should be formed between the Tamil parties and the majority parties in the South to give up the right to secession in return for making the 13th Amendment an entrenched clause in the Constitution. The inadequacy of the present form of centralized government to win the willing co-operation of the Tamil minority cannot be ignored in the present international context when several allegations are made regarding the violation of human rights and even genocide and war crimes during the las stage of the war. The Tamil parties may be persuaded to dissociate themselves from any demand for investigation of the allegations of violations during the last stage of the war.

The Division of Powers should be entrenched in the Constitution

Federal government refers to a separation of powers between a central, national government and inferior political entities. In the US, power and responsibility is shared between state governments and the national government. So is it in India. Under devolution of power under the 13th Amendment there is a similar division of power but the division of power is not made irrevocable. This can be done by making the 13th Amendment irrevocable. Call it federalism if necessary but the principle involved is the irrevocable nature of the allocation of powers and the removal of overlap of powers.  The U.S Constitution was passed by a Convention of the States, which are a constituent part of the Republic and then placed before the Congress. “Resolved, That the preceding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification; and that each Convention assenting to, and ratifying the Same, should give Notice thereof to the United States in Congress assembled.

What did the Constituent Assembly that adopted the 1972 Constitution? They ignored the Federal Party and did not take into account their consent. Thereafter the Federal Party passed the Vaddukoddai Resolution.

How we do so should be discussed further. The best course of action is to make the 13th Amendment an entrenched provision at least as far as the Allocation of Functions is concerned. It may also be necessary to remove the overlapping of functions between the Central Government and the Provincial Council. Whether the new constitutional arrangement is federal or not is irrelevant. The word doesn’t even have to be mentioned. What is necessary is the Center will not have the power to unilaterally change the 13th Amendment particularly Allocation of functions.  In short there should be a permanently binding agreement called sometimes a covenant.

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    R.M.B Senanayake’

    How many Sinhalese have your accommodating thinking? A small percentage, I think.

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    Dear R.M.B Senanayake,

    “Resolving The Tamil Problem Through An Amended 13th Amendment”

    Q1. The Tamil Problem? The Sinhala Buddhist Problem? Did Buddha talk about it? Described in the Tipitaka? Only Monk Mahanama described it?

    How did it Become a Problem in the First Place?
    Historically, the Tamils and Sinhalese originated from the Southern Indian gene pool, ans in many cases one cannot a Tamil from a Sinhala.

    The root cause goes to Buddhist Monk Mahanama and subsequently expanded to become Sinhala Buddhist Chauvinism or Racism.

    So you need to attack this root cause simultaneously along with the other checks and balances to create an Egalitarian Lanka or Illankai.

    The Myths need to be attacked constantly and degraded constantly. Mythology, especially Religions Mythology is very strong, and hard to dislodge. Even with scientific facts and observations, like the Earth going around the Sun, even after 400 years,about 25% of the people on the USA and Europe still believe in the Myths.

    The Myths of Nirvana, Nibbana, Samsara, Rebirth,Hell and even are still worse. The Monks, the Priests, the Mullahs and Clerics harness the power of myth to control their subjects, the myth believers.

    So if you want to solve the Tamil Problem, you need to address the Sinhala Buddhist Myths as well as Sinhala Buddhist Racism to get to an Egalitarian relatively peaceful Lanka or Illankai.

    DeJa Vu…

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    Appropriate subject matter for young legal professiols & university Law undergraduates.

    The wuthor’s deep sense of fairnaess to all is overflowing this article as is every other article of his.

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    13 is a bad number ……no wonder the amendment is not going through

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      Deselva,

      You are spot on. 13 is a bad number and coupled with Friday it is bad for MR and his cronies.
      You are clever man.

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    Thank you Mr Senanayake.

    @Amarasiri
    “How did it Become a Problem in the First Place?”
    “It should be obvious now that the political structure of SL is the root cause of the SL conflict and every facet that perpetuates the conflict: majoritaniarism via identity, language, religion; re-imagined historical narratives treating Mahavamsa like a historical text in the schools (even though its earliest details are fuzzy, grandiose and mythologise Sinhalese as ordained by Buddha, Tamils seen as enemies, and it betrays a lack of understanding of Tamil-Sinhalese origins and chronology), even smart Sinhalese today are taught that Tamils are interlopers and would be shocked at chronology and Tamil antiquityand how Sinhalese relates to Tamil; majority group dominance of govt majority community over-represented in legislature, courts judge based on Sinhalese-crafted laws/constitution, police is 95% Sinhalese, military is 99% Sinhalese and deployed solely internally against common wisdom or efficacy of its proper role, unfair practice of governance unfair laws (in the 1st year alone, enacted retroactive stripping of Tamil plantation worker citizenship), unfair implementation (even after Tamil made an official language, it is hardly used in practice, while monolingual Sinhalese judges, teachers, etc. are appointed to high posts in traditional Tamil areas), judicial rulings based on unfair laws/constitution created without Tamil participation, unjust violence committed by majority group (despite reasonable demands), starting with the first Sinhalese mob violence against Tamils in 1939, and continuing onwards, and it hasn’t stopped yet; suppression of dissent against majoritarianism even aspects like the religion of the majority became politicised, and now that the Tamil Tigers were defeated in 2009, Sinhalese are finally realising that the “dissent” being silenced can be from anyone. History points us clearly to the fact that the structure operates as a “positive feedback loop”, i.e. self-perpetuating and self-intensifying.

    For such a simple idea, it’s easy to get lost in the minutiae of the litany of supporting evidence. And even though it’s a simple idea, even now, even among educated people in the Diaspora (even youth), the problem of SL’s structure is parried with tangential details, or the issue is de-emphasised in favour of concern for the resulting symptoms.

    Here, I just want to suggest another way to reason about why the structure is the root problem: basic math!”

    Basic Math Explains Structural Root Cause of Sri Lanka Conflict
    http://new.sangam.org/2012/07/Structural_Cause.php?uid=4775

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    R M B

    Your intentions are well meaning but sadly those who wield power have a different agenda. MR and his cronies will never yield power to the Tamils willingly and 13th Amendement just the bregining and I will tell you what the Tamil aspirations are and the hurdles we have to cross.

    MR will try to stay in power and deny the Tamils their legitimate right to Govern themselves using the excuse that the LTTE threat is still there. If the Tamil issue is not settled once and for all then only the LTTE threat will come back.
    The following is the minimum that we will need to stay within a United Sri Lanka and nothing else will do.

    1) Recognition that the North is different from the South and there are two distinct groups
    2) You cannot treat the nine provinces in the same manner when it comes to devolving power.
    3) The Tamils need Land and Police Power and the right to run our economy.

    If MR is not prepared to give it to us we will get it with international support and things are moving forward.

    Mr.Wigneswaran and party are going to Delhi soon to plan ahead.

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