24 April, 2019

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Why The 13th Amendment Is Necessary

By R.M.B Senanayake

R.M.B. Senanayake

The Government seems to be bent on amending the 13th Amendment to the Constitution. The JHU 19th Amendment wants to repeal the entire chapter in the 13th Amendment titled Chapter XVIIA which sets up the Provincial Councils. In short it wants to abolish Provincial Councils.

The Government seems to want only to repeal the police powers and the Land powers given to the Provincial Councils and to amend the clause which requires the approval of the all the Provincial Councils to any proposed laws which affect the functions or the Provincial Councils. It wants to change such required approval of the Provincial Councils to read as a majority of the Provincial Councils and not to all the Councils.

But any unilateral changes in the 13th Amendment will only open the way to the whole ethnic issue including the right to secession. The 13th Amendment was the result of an agreement between the leaders of the Sinhalese and the leaders of the Tamils. Prabakaran who wanted only Eelam was pressurized by the Indian government to agree to the Provincial Councils.  The TNA and the other Tamil parties are no longer demanding Eelam although they ask for 13 plus. Now by unilaterally changing the 13th Amendment we will free both the Indian government and the Tamil leadership to canvass for an alternative solution to the Ethnic problem including Eelam.

The grievance of the Tamil people was that they had no voice in the governance of their areas of habitation and that there was discrimination by the Sinhalese dominated central government both in the allocation of funds as well as the allocation of jobs in the public service and in the use of the Tamil language. The  Tamil people in the two Tamil majority provinces had almost no say in the decisions that affected and shaped their lives when the whole country was governed from the Center and decisions made at the Center were made by Sinhalese officials and Sinhalese politicians.

Bilingualism with English as the link language is neither economical nor practical. It is not practical since the official language is the language of record and one can’t keep records in two languages in a practical manner. The only economic  and practical solution in my opinion is to make Tamil the official language in the North and East and devolve as many day to day activities of the State public services  to the Provincial Councils and use English as the link language of communication between the Center and the Tamil speaking Provincial Councils.

So the rationale of  the 13th idea in the Amendment  was  to create two levels of government so as to empower majority Tamil provinces to manage their affairs particularly in matters of local development including the police function and land alienation.

These provinces are constitutionally empowered to make laws through an elected Provincial Council and they were administered through a Chief Minister and a Cabinet of Ministers drawn from the Provincial Council, supported by a provincial public service. The Provincial Councils have legislative competences (both exclusive and concurrent) on most of the local service delivery matters including agriculture, education, community development, housing, health services. There is also a system of local government to facilitate popular participation in governance. In addition there is to be a developed administrative structure in the form of provincial administration, similar to the former ‘kachcheri’ but under the Provincial Council.

The Provincial Councils seek to empower the local communities to be responsible for the local governance. This would address the fears of ethnic dominance which have been expressed by the Tamils by removing some powers and resources from the centre to the provinces.

Since the 13th Amendment was passed there have been radical changes in the Constitution by way of the 18th Amendment. It has removed virtually all the checks and balances on executive power thereby putting to rest the notion of constitutionalism- limited government.

Executive power however has continued to be legitimized ostensibly through the Constitution. The Executive however is very conscious of the need to trace back the exercise of its absolute authority to the original democratic Constitution despite the fact that the values of that constitution are no longer having any impact on the exercise of executive power today.

But the Executive Presidency doesn’t like any dilution of power to the Provincial Councils. As long as the ruling political party controls these Provincial Councils the writ of the Executive President will hold even among these Councils. But this dominance through a political party will not work in the Northern Provincial Council. So the present regime wants to re-centralize power. The Divineguma Law was another law to monopolize political power in the ruling party, by-passing  the Provincial Council system with power and authority flowing directly from the Central Government Ministry straight through to the field officials avoiding the Provincial Council hierarchy.

Under the regime political competition has been muzzled as witnessed in the recent questioning of the Friedrich Ebert Foundation officials for a seminar on how to strengthen the Opposition political party. Civil society too is increasingly intimidated, co-opted or banned from carrying out certain activities like the promotion of human rights by the state. Over time the state seeks to occupy the entire public sphere crowding out both political actors and the civil society.

Apart from political and social control, the state also may be uninhibited in following policies favoring certain groups or parties or communities while undermining others through policy and legislation. In keeping with dominant economic model of the regime the state considers itself the main agent of development. This model advocates comprehensive centralized exercise of power as in the former Communist States. The desire of the ruling party and president to centralize and monopolize power is primarily driven by the need to exercise unlimited control over state resources in order to dispense patronage to political supporters (both individuals and ethnic communities).The monopolization of political power by the ruling party has helped to co-opt the minority political parties like the Muslim Congress or the Ceylon Workers Congress to be co-opted to the government. But the removal of limits on the exercise of executive power to dispense patronage inevitably lead to problems in such coalitions. The system of allocation of resources and development opportunities to individuals and different parts of the country on the basis of political patronage instead of objective criteria will be undermined if there is devolution of power and allocation of resources of the State through an independent Finance Commission. Hitherto the Finance Commission has been a mere figurehead as the allocation of resources to the Provincial Councils is done by the Ministry of Economic Development.

The system of political patronage in appointments promotions has excluded many people who voted or supported the Opposition or were from the ethnic minorities from government services creating a feeling of marginalization among them.  It is this strong feeling of exclusion that has led to the perception that one had to have one of one’s kind in a key political public office for him to access government services and opportunities.

Inefficiency of government under centralization

Under the present system of centralized government there is often need for constant communication between the officers at the Capital and its implementation officers on the ground. This back and forth communication in which field officers must constantly refer matters to the Capital for decision making creates serious inefficiency in the system thus undermining development. Locating decision- making and planning in the centre while implementation takes place in the field undermines co-ordination as the various technical departments operate independently and also refer matters to the centre independently without adequate consultation among each other. Horizontal co-operation in the field is thus undermined by the need to defer to a faraway superior in decision- making. The MTV regularly spotlights numerous failures of government in the field despite the government having spent money. Rope bridges collapse, irrigation channels are not cleared, dams are not repaired and sluices decayed but all these repairs have to be carried out by central government field officers and there is no monitoring of their failures by the central government officials in the capital.

Centralized administration also undermines accountability as the field officers can easily shift the blame for their defective implementation or misuse of resources to their superiors at the centre. The identities of the responsible officers at the centre are normally vague. Decentralization overcomes these challenges by getting the field officers to report to a regionally based superior be it the Pradesiya Sabha or the Provincial Council. Centralization excludes the citizen from decision-making in planning and implementation as well as the field officers. Centralized systems presuppose that the citizen has no ability to effectively contribute to developmental matters. It ignores the fact that the citizen is more aware of their needs, is more interested to support the development programmes in their area and that opportunities for popular participation are necessary in order to develop democratic culture. Centralization denies the local population a genuine platform for participation as the public officers at the centre are far removed from the citizens and not bound by the views or suggestions made to field officers who know the ground situation better. By this we mean that the era where hospitals, schools and other facilities were built, without the requisite operational resources to enable there utilization must come to an end.The effectiveness and efficiency with which public services are provided to support inclusive growth, economic innovation and competitiveness and maintaining quality public services will be key to the success of the country. Public services have been defined as any of the common, everyday services provided by national and local governments with the aim of improving social welfare.

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Latest comments

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    Don’t we have 8 PCs working ,under this 13 A, with one in the East as well although it is still in PM Rudrakumaran’s Map which was presented to the “IC” in the British Parliamentary building?.

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      Plase
      sumanasekara let me know when u leaving this wonderful world….I know u r don’t use u r brain…please beg u don’t come back will u…sumana my darling rest in peace….

      • 0
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        Shut up you idiot Muththu without messing up all

        13A which brought nothing but an very fat white elephant to all the communities in SL was forced on us by the idiot leaders Mrs. and Mr. Gh who lost their lives and brought historical shame to India in the terrorism they planted in. So this disgraceful basted act has no future in the country and must be abrogated in no time as it bring no good to majority of all the minorities who live with all the happiness among the majority.

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          It is true 13th amendment bring nothing to Sinhalese because you don’t need that. It is only needed where minories are living, a different language is spoken, and the people didn’t have security.
          Your country is very famous for acts in 1958, 1977 and 1983 where all minorities were able to live happily among majority. Before you call Mrs G and Mr Gh you must call few others who signed an agreement something similar to 13th in 1956, 1965, 1981. The first one was assassinated by the same majority. I don’t know whether you are going to use same cultural word (Disgraceful Basted)to describe these personalities of your nation. Even your current boss has accepted to go beyond 13+ to the same India. Do you know why? Was there any force used?
          Did you ever spend some time to think about the local terrorism which was planted in this country in 1970s by the so called revolutionists who are still part of your country. Do you know who gave arms and training to those terrorists? I am sure you wouldn’t have forgotten 1989-90. During this periods, it is the majority people who had the taste of real terrorism. Streets with skulls, and bodies on posters, thousands were inside mass graves and your boss running here and there in front of Geneva. You are lucky at that time. No cluster bombers, No shells, hospitals were not attacked but you didn’t have freedom to move, speech, violations of human rights by the same army and crimes against humanity.

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            You total idiot similar to racist and stupid past and present Tamil leaders

            Over 60% of the minorities are living outside the N&E of SL and even in the N&E, Tamil language rights have all been given by now and it was actually given for the first time in 58 due to Sinhala pressure mounted on Mr. B who saved the country from 6% of the English speaking class (non-native) of then English only rule. Tamil freedom was brought for the second time by the SL defence forces who saved them from LTTE clutches in 2009. You and foolish Tamil leaders demand on those un-mandated agreements that power hungry Sinhala politicians came into with stupid and racist Tamil politicians behind the closed doors. Now the LLRC report and the 13A will also going to be ended up in the same thrash bin of the history where all of the useless (basted) papers you claimed on was thrown into by the Sri Lankans who saved the country throughout the history. SL defence forces who acted much humanly than the way the western forces acted in Vietnam, Iraq, Afghanistan, Libya and Japan etc., correctly and legitimately saved the democracy in SL in 71, 89 and 2009 …. from western and Indian made Marxism and LTTE terrorism which also have been ended up in the same bin by now.

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    In the absence of an efficient central govt with democracy in play the need is for devolution of power to the provinces. The saying ‘Colombate Kiri, Gamata Kekiri’ still applies although it has now changed to ‘Anduvata Lamborgini, Gamata Badagini’. All the so called rural folks have migrated to Colombo and are living it up in style in the Casinos and Night Clubs.

    True devolution will give the chance for the rural man to guide his own destiny and improve his living standards. The affairs of the North should be decided by the people of the North not by the JHU seated in Battaramulla or the BBS in Havelock Town.

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    some time or the other the separatist elements in people emerge… RMB is just one… the next lot of articles supporting 13a will come from jehan, paki, pinto, TG, bastians… the same lot will now start..

    their only problem is NO ONE trusts them… they are just a laughing stock… except for those that egg them on.. but how many are these anyways….

    what a pity… anyways they give us some humor… when we know what to expect from them

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    RMBS has highlighted the need for continuation with 13A and the inefficiency of the government under centralization.

    Over the years the inefficiency of governance under 1978 Constitution has been proven with first hand evidence. Firstly the accountability of politicians who are elected from lists submitted by political parties. They are not accountable to people and party hierarchy put a blind eye to all misconducts. Once elected they are not with the people but with the party. No conscience vote on sensitive national issues. If they not happy with remaining in the opposition without “benefits” they cross over and cross overs are “legally valid”.

    The second issue, as highlighted by RMBS, is delays in implementing programs and projects, which are generally planned and designed by the centre. This not a problem of centralization of planning and decision making. It is a problem of limits of financial authority and weak financial oversight mechanisms. Political authority prevailing over implementing authority at field level decision making is the main negative factor for the weakness at field level. In this era of ICT, communication is not a problem anymore. At every level of implementation, the officials cannot implement programmes and projects in accordance with approved procedures because the constitution has vested absolute powers to political authority, which is not accountable at all. The constitution does not spell out the limits of political authority and therefore the officials are compelled to work under the sword of Damocles.

    It is generally accepted the world over that people’s participation in governance is high at local level and before the 1978 Constitution and 13A local governments in Sri Lanka were accountable to people. Since 1978, there had been many changes that weakened the local governance. Electing members from lists submitted by political parties distanced the people from local authorities. Central Government funds being channeled through Provincial Councils have caused delays and has led to malpractices and high overheads. Combining Local Government Service with Administrative Service has caused a problem of retaining management level officers trained in specializations required only for local governance. They do not remain in local governments and therefore planning and implementation of local projects and delivery of local services are badly affected.

    The list is too long to comment to highlight the unsuitability of 1978 Constitution and 13A. The foregoing highlights the need for ensuring political accountability and setting out of limits of political authority to depoliticize operational aspect of governance, integration of ICT into operations and setting practical and appropriate limits of financial authority for each level of operations in governance.

    If these things are looked into and a practical language policy for state communication is formulated, there is no necessity for devolution of power because the politicians and officials know their work and limits. The funds wasted on PCs can be utilized to pay better salaries for state officials and to introduce good management practices for operations. Parliament needs more powers for financial oversight because the current mechanisms known as PAC and COPE are toothless to enforce financial discipline in decision making at Political and Operational Levels. Now what is happening is politicians who are not accountable to people targeting the officials through PAC, COPE and Public Petitions.

    Finally it needs to be mentioned that without law and order at the political authority level, which enjoys absolute powers at present, there is no point in Civil Society participating in governance even at electing representatives at National and Local Elections.

  • 0
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    I read the following information in Time magazine (May 20’2013):

    “India finished 2012 with the economy growing at a rate of just 5%, the worst performance since 2002. In a poor country, that feels almost like a recession, and the mood remains bleak.”

    ” And yet, the farthest you travel from New Delhi, the less India looks like a nation like a nation struck in a rut”

    The following are listed as ‘Breakout States’:

    Maharashtra- 8.5% growth
    Gujarat – 8.5% growth
    Bihar – 9.5% growth
    Orissa – 9.1% growth.

    “Gujarat Chief Minister Narendra Modi is credited with building a state that works with less chaos than the Indian norm, to provide ” MINIMUM GOVERNMENT, MAXIMUM GOVERNANCE”- in other words, limited spending but efficient delivery of services. Gujarat has become a model in India for providing electricity, clean water and a relatively efficient bureaucracy, allowing entrepreneurs to open business with unusual speed.”

    A sterling case for devolution of the right sort!

    Dr.Rajasingham Narendran

  • 0
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    RMB Senanayake,

    Usually you are a well informed columnist. But unfortunately you seems to be not aware of the 16 amendment to the 1978 constitution certified on 19 December 1988.

    I just give below a section of the 16 amendment

    22. (1) Sinhala and Tamil shall be the languages of administration through out Sri Lanka and Sinhala shall be the language of administration and be used for the maintenance of public records and the transaction of all business by public institutions of all the provinces of Sri Lanka other than the Northern and Eastern Provinces where Tamil shall be used:

    Provided that the President may, having regard to the proportion which the Sinhala and Tamil linguistic minority population in any unit comprising a division of an Assistant Government Agent, bears to the total population of that area, direct that both Sinhala and Tamil or a language other than the language used as the language of administration in the province in which such area may be situate, be used as the language of administration for such area.
    The language of courts and language of legislation was also satisfactorily addressed in this amendment
    The language question was resolved to the satisfaction of all with the 16A

    The only question is the implementation.

    It was not implemented in letter and sprite.

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    It is India which wanted the 13th amendment.

    If we allow the 13th amendment we should it to go all the way until Tamils separate.

    then we will see how India will dance like the Crab in the boiling pot.

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      You should be clear that you cant clap with a single hand… not only indians, but also part of lankens agreed with 13 AMD.

  • 0
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    It is very good article. Those who really interested in the peaceful welfare of the nation that is united recognising the importance of power sharing should come forward to put forward their support for the power sharing devolution. It is shame that the leftist parliamentarians who are in the government and professionals like G.L. Piries keeping low profile towards power devolution. The country need peace, the country need development, the country need democracy. I am sure the Sinhala people will not object because don’t want to see blood bath in this nation. Don’t miss this opportunity. If you miss this opportunity, you may never get it!

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      Share power with whom? read:
      (srilankaguardian.org/2013/05/the-13th-amendment-from-perspective-of.html )

      A propos the discussion between Mr. Dayan Jayatilleke, G. H. Peiris and others in the public media 0n 13A, allow me to add a few words – the words of a humble Tamil who comes from a social stratum lacking a voice in Tamil affairs. The dominant Thamillian-voice is that of the upper classes (‘castes’) led by the Karuvakaddu (Ciannamon gardens) lawyers, anglicized and christianized in attitude except when dealing with those in lower stations of life.

      Mr. Jayatilleke is part of the environment of our Periah-Dorai class of Thimpu Tamils stuck in the 1980s, in spite of the changed politics of today.

      Mr. Jayatilleke claims (234d May, Island) that “Tamils of that province have evolved and crystallised a collective identity …”. Mr. J should know that this “identity” is based on landownership by a small elite who is even today trying to “re-settle the IDPs in the old villages”, reviving the caste-delineated social structures that existed in the the North. He knows how the North remained mired in poverty, with the Karuvakaddu lawyers treating the North as their private estate, run by their agents who were the Northern equivalents of the Mervyn Silva’s (`palavanthans’) of the south.

      The rise of Prabhakaran in such a society long dominated by strong men is no accident. Prabhakaran was a “palavanthan” who grew from among the ‘boys’ nurtured by the Karuvakaddu lawyers. He went beyond the usual Vanniayar palavanthans by successfully assassinating enough of them to subjugate the Thimpu class. The Northern Provincial council, if established will become an arena for new palavanthans and muttukans who will play each Tamil-Nadu leader against another, and each Diaspora leader against another, while the Karuvakadduns and their NGO friends will fish freely in such troubled waters.

      The Northern provincial council, if constituted, will plunge the North back into dark ages. Angered politicians of the south will cut the flow of capital for building the modern infrastructure that the North never had, or was dismantled by the Tigers. The way forward for the Tamils of the North is not that charted by DJ or the Thimpu. The Northern Tamils must emulate the Colombo Tamils, and develop their commerce and industry, hand in hand with the Sinhalese and Muslims, to create a vibrant tapestry of cultures rather than the narrow mono-culture proposed by Jayatilleke.

      In my view, Mr. Jayatillke does not understand Sinhalese or Tamil society at their grass roots, and comprehends no Tamil? Political apologists like him are useful to the Thimpu and their international friends with their threats and treats. However, unlike during J. R. Jayawardena’s time, Sri Lanka has nothing to fear even in a military confrontation with India which remains a disfunctional land of beggars and billionaires that cannot even defend its own borders, inter-state or international.

  • 0
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    At the movement 13A is the only solution to solve Sri Lanka’s on-going ethic problem, Big Thanks to India.

    If Sri Lanka still wants to remove 13A, It must do followings 1st before to do so;
    (1)Do an independent investigation (with international monitors)regarding the Channel 4 shows and UN reports.
    (2)Implement an alternative Solution acceptable my minorities.

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