The Irrelevancy of the 13th Amendment in Finding a Solution to the National Question: A Critical Note on Sri Lanka’s Post-War Constitutional Discourse
The 13th amendment to the Second Republican Constitution that established the Provincial Council system has become the centerpiece of the discourse on constitutional reforms in post-war Sri Lanka. For two decades between 1989 and 2009, the provincial council system was rarely mentioned in the constitutional reform debate, except when it found mention in the President Mahinda Rajapaksha- appointed All Party Representative Conference (APRC)’s Interim Proposals in 2008. But since the end of the war in May 2009 the 13th amendment has made a definitive come back to the constitutional reform debate. Today the solution to the ethnic conflict in some way or the other is proposed by way of reference to the 13th amendment. President Rajapaksha’s Government would like to water down as much as possible the 13th amendment (‘13-‘), whereas the Tamil National Alliance’s stated position (derived from the Indian position) is for the full implementation of the 13th amendment and moving beyond the 13th amendment towards ‘meaningful devolution’. This main purpose of this article would be to demonstrate that a solution to the National Question, based on the 13th amendment would not be possible. It will seek to problematize the minimalistic argument for ‘full implementation of the 13th amendment’, demonstrate the impossibility of ‘13+’ and ‘meaningful devolution’ within a unitary state, seek to locate the role of the Supreme Court as an arbitrator of devolution disputes and as to why a solution within the unitary state will not be possible and more importantly why its unlikely that the majority community will agree to a solution beyond the unitary state. There is sufficient literature on the law of the 13th amendment and hence this article will primarily seek to reflect critically on the politics and constitutional praxis of the 13th amendment.
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*Kumaravadivel Guruparan –PhD Candidate, University College London and Lecturer, Department of Law – University of Jaffna. This article published by the Junior Bar Committee of the Bar Association of Sri Lanka