The 13th Amendment: UPFA Government Is Heading For Its First Defeat In The Parlaiment
By Sumanasiri Liyanage –
Sumanasiri Liyanage
The virtual repeal of the 17th Amendment as a necessary corollary of the enactment of the 18th Amendment to the Constitution of Sri Lanka, the chauvinist forces in the South began to raise the possibility of further amendment to the constitution by using the two-third majority that the United Peoples’ Freedom Alliance (UPFA) have in the Parliament. Their clear target has been the 13th Amendment that introduced in 1987 for the first time in independent Sri Lanka a devolved system of government to make the government structure more democratic and decentralized many flaws of the new system notwithstanding. With the decision of the Supreme Court on the Divineguma Bill and the new issue on if the decision of the Provincial Governor can be considered as the decision of the Provincial Council, we witness today a reemergence of the debate on the place and future of the 13th Amendment in the constitutional landscape in Sri Lanka. My personal opinion is that the decision of the Supreme Court on the Divineguma Bill was not accurate. However, it would be good and justifiable even in the event of the absence of a Supreme Court decision to place the bills of this nature before the Provincial Councils to obtain their views. It is interesting to see that the Divineguma Bill has been used as a scapegoat by the chauvinist forces to revive their long standing opposition to the system of devolution in general and to the 13th Amendment in particular. My argument in this article is based naturally on the conventional position I have been holding since the aggravation of the national question in the early 1980s. I stand for devolved system of governance. Further, I believe that the constitutional structure that defines the power map of the country should be changed in order to accommodate the demands of the numerically small nations living within the boundaries of the country. The failure and unwillingness of the ruling elites of this country in the last 65 years to make such changes is in my view one of the reasons for the aggravation of the national question in the early 1980s.
Minister Wimal Weerawansa has written to the President suggesting him to hold a referendum on 13th Amendment. Minister should be aware that the 13th Amendment cannot be repealed by holding a referendum. Prior to that, the Minister and his government should present a bill to the Parliament clearly notifying that the bill proposes to repeal the 13th Amendment. As the Island reported (October 22, 2012) a government bureaucrat, the Secretary to the Ministry of Defence, Mr Gotabhaya Rajapaksa, has advised that the Sri Lanka Freedom Party takes a bold decision to repeal the 13th Amendment in order to face the “post-war strategy of the Tamil National Alliance (TNA)’. A similar view was expressed by a number of spokespersons belonging to Jatika Hela Urumaya. It appears that there is a shift in the argument that they have put forward against the 13th Amendment. Using the Divineguma incident, they argue that the legislative power of the Parliament has been reduced as a result of the 13th Amendment and the presence of the Provincial Council system. This is not true. According to the Constitution of Sri Lanka, peoples’ sovereignty lies with the people and the people exercise this sovereignty through elected bodies, namely, (1) the Parliament and (2) the Provincial Councils and directly through (3) a referendum. A part of the legislative power previously exercised by the Parliament was devolved in 1987 to second-tier governments by creating Provincial Councils. This is an application of the subsidiary principle in taking decision-making. Hence it is not correct to argue that the creation of the provincial council system has reduced the legislative power of the Parliament. It seems that at least one section of the government has started its preparatory work for proposed Parliamentary Select Committee (PSC). I have been arguing that the TNA, SLMC and other opposition parties should not participate in the PSC exercise unless the government promises to clearly identify the point of departure of the PSC deliberation. In an previous article, I mentioned these conditionalities should include the followings: (1) the full implementation of the LLRC should not be a reduction of subjects devolved by the 13th Amendment. Since India appears to be pressing for the TNA to participate in PSC deliberation, India should also assure those three condionalities be fulfilled before the commencement of PSC deliberation.
Will the government seriously think to repeal the 13th Amendment by giving to the pressure exerted by some of the constituent parties of the government and some bureaucrats? It is not easy to offer a definite answer to this question. However, it seems to that the government intends to limit PSC deliberation by introducing a phony power-sharing system in place of the PC system. Of course, there is a general criticism against the PC system that it has become a kind of a white elephant. This is not an outcome of the weakness of the PC system, but a direct result of the continuous encroachment of the central government into the sphere of the PC. So, it is not surprising for common people to view the PCs as duplicating mechanism. If the government intends to repeal the 13th Amendment, it has to present a bill to the Parliament by clearly stating its intention. And the bill has to be passed by the Parliament by two-third majority. Since, it can be interpreted as a major change of the substance of the constitution, the bill after passing has to be place before the people in a referendum.
As the UPFA government today enjoys the two-third majority in the Parliament, Weerawansa, Ranawaka and Gotabhaya Rajapaksa may believe that the constitutional huddles on the path of repealing the 13th Amendment can be thus overcome. However, on the other hand, one may also project that such a bill would bring the UPFA government its first defeat in the Parliament. The SLMC would be forced to sever its relations with the government in such a situation. The five left party members in the UPFA government have to prove that at least the left parties have some courage left so that they can stand up to their principles. Some members of the SLFP that include Cabinet ministers may not support a bill of that nature. So let me make a prediction as concluding remark. Attempts to repeal the 13th Amendment will be the commencement of the downfall of the UPFA regime.
*The writer is a co-coordinator of the Marx School, Colombo, Negombo and Kandy. E-mail: sumane_l@yahoo.com
Senguttuvan / October 31, 2012
Shankar – Democracy also has to be weighed from the angle of the evils and distortion of majoritarianism. Where is the justice in the sytstem if we place the Tamil issue to a Referendum in a country where more than 75% of the voters are Sinhalese – that too fed on a large diet of anti-Tamil venom from 1956? Surely, the Buddhist Mahanayake-priest led South is not going to allow a Referendum in the once Tamil majority NEP, where there is some validity for this. This even with the Eastern Province colonised by outside Sinhalese with State inspiration and resources since 1947(accelerated in the past 2 decades)
Let us all gear ourselves to the reality of tomorrow – an international community inspired Tamil NEP within a “2 Nations in one undivided country” formulae or the other more unpleasant choice. It took the obstinate Sinahala South (1) 30 years to yield to reason on language parity and (2) 40 years to restore the plundered voting rights to Sri Lankans of recent Indian origin. That’s a fair gestation period for a confused and jaundiced majority populace to concede just rights to the Tamils – which the latter enjoyed prior to 1505.
Senguttuvan
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shankar / October 31, 2012
Senguttuvan,I do not like the amalgamation of the north and east for some reasons like
1.The sinhalese will always think that the agenda of those proposing this is the first step towards seperation,and they will stiffly oppose this.You can’t blame them because the merged north east is the map of Eelam which was what the seperatists wanted.If you want to show to them that you are not genuinely interested in seperation then you have to do it with deeds,not with words only,because they do not trust the tamils anymore and will think that there is always a hidden agenda.The TNA and people like you should drop the demand for merger as the first step in the confidence building measures needed to bridge the gulf between the two communities.The tamils have to on their part firmly decide whether they want seperation or devolution.You can’t have both,because devolution is given to people to quench their thirst for seperation. The two move in inverse directions though the sinhalese believe mistakenly that it moves in the same direction.When devolution is given the momentum of seperation is reduced and as the degree of devolution increases the seperation vehicle comes to a grinding halt as it did in tamilnadu.
So tamils can’t have it both ways and have to decide what they want of the two alternatives.Those tamils who mistakenly think just like the sinhalese that the two can go in the same direction,without realising that they are opposing forces,can cling onto the northeast merger concept hoping that devolution will lead to seperation,while those like me who do not want seperation will immediatly accede to the legitimate demands of the sinhalese for seperate provinces.
2.In a democracy you got to ask the people what they want before you make decisions that will affect them drastically and permanently.The Indo Lanka accord specifically says that a referendum should be held in the east to see whether the people want a merger with the north.Do you think the people will vote for merger?I don’t think so.I advised the sinhalese to hold this referendum and once and for all put the issue to rest for all the world to see but they keep having it on their lap like a hot potato and the world thinks they have done an injustice to the tamils by the demerger.
3.The concept of devolution is to help people to manage their own affairs without running to the center for all their decision making.This can be done more effectively with two provinces instead of one merged one.No wonder the sinhalese get suspicious when tamils keep demanding the merged province for devolution.See my plan of 5 provinces for the country in my earlier comment.Is there anything about ethnicity in there?I don’t want to join that bandwagon.The sinhalese will know immediately there is no hidden agenda here.The moment you bring in the ethnicity only the mistrust begins.We must have policies that create a Srilankan identity that takes precedence over ethnic identity.The tamils must also start taking the first steps and move in that direction if they want the sinhalese also to,and then the two will meet somewhere halfway.
As for your comment on the referendum for the 13th amendment,I did not propose one single country wide one as you misinterpreted,but seperate ones in the nine provinces.That is the correct way to do that because the Indo Lanka accord is all about devolving power to the provinces and since the provinces are the heart of the issue separate referendums should be held in the different provinces.I thought that was obvious and did not explain it properly.The the provinces that want it can have it and those that do not want can discard it.I believe that will result in the north and east only having provincial councils.The sinhalese are constantly grumbling that these are white elephants,so let them discard it if they want to on that basis and while the tamils in the north and east can retain it.Then if the sinhalese oppose the councils in the north and east,the cat will be out of the bag that white elephants are just an excuse and the real reason is that they don’t want to give devolution of powers to the tamils.
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SIRIMAL / November 4, 2012
Hi Sumane
“So let me make a prediction as concluding remark. Attempts to repeal the 13th Amendment will be the commencement of the downfall of the UPFA regime”
None of your previous predictions have come true. You are nothing less than a puppet of Prabhakaran, with a so called sinhala name. 13 amendment need not be repealed directly, there are ways and means of making 13 amendment non-operative, step by step. Sri Lanka belongs to all Sri Lankans, power should not be devolved on ethnic ground.
13 amendment will be ‘anichchawata sankara’ eventually.
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