The 13th Amendment to the Constitution fundamentally flawed!
February 18th, 2008
By Vindya Amaranayake
After more than 60 sittings, over a period of 18 months, the All Party Representative Committee (APRC), recently, heaved out its proposals, supposedly, to put an end to the two decade long conflict.
When the much hyped about committee was first set up, it gave oxygen to a dying creature; the hope, that a conglomerate of all the political parties is capable of realising a solution to the long drawn out conflict. This was, sadly, not fulfilled.
What emerged after much deliberation was the proposal to implement the disputed 13th Amendment to the Constitution, which did not serve its purpose, during nearly two decades of its existence.
Flawed, inadequate Amendment
“The 13th Amendment to the Constitution is fundamentally flawed in a number of respects,” Colombo University’s Law Faculty Senior Lecturer Rohan Edirisinha opined.
He explained that the Amendment does not give substantial devolution of powers to the provinces, and added that it has been very easy for the centre to take back the powers it has given to the provinces: “The central Parliament has, over the last 20 years, passed laws on provincial subjects and functions. That is why most Tamil politicians have deep reservations about the Amendment.”
Quoting a former Constitutional Affairs Minister, Edirisinha said, “As Prof. G.L Peiris, as a cabinet minister under President Chandrika Kumaratunga and Prime Minister Ranil Wickremesinghe, often said, “under the 13th Amendment, there was only a ‘veneer’ of devolution of power because, what was given with one hand, was taken back with the other.”
He also pointed out that there is no constitutional mechanism to ensure that the powers devolved to the provinces, would not be forcibly retracted by the central legislature: “Unlike in India, there is no state or provincial representation at the centre to act as a watchdog, to prevent Parliament’s encroachment into the provincial domain nor, is there an independent public service to limit central executive interference in the affairs of the province.”
This point is especially important, given the constitutional provision that the centre could take the powers of a provincial council (PC) and give it to an executive president.
Ink on paper
Taking these points into consideration, Edirisinha said that the full implementation of the 13th Amendment might not be enough in the present context. This is, especially, in a backdrop that the government, in its two-page document, has not promised the full implementation of the Amendment.
“The original idea of the APRC was to come out with a set of proposals that addressed the full implementation of the 13th Amendment to the Constitution. But, the document that finally emerged was a mere two-page document that talked about ’some relevant’ provisions. So, there is a big difference.”
The content of the APRC proposals was dissected and analysed by many, and concluded on the restrictions of the powers devolved to the provinces. Special attention was given to the limitations imposed with regard to police powers and the power over lands.
“The two-page document has, merely, a set of vague and almost unenforceable statements such as ‘the government shall endeavour to facilitate the smooth working of the PCs’-it is totally vague and very limited,” Edirisinha pointed out.
The 13th Amendment to the Constitution was ratified by Parliament on November 14, 1987, more than 20-years-ago. Yet, none of the successive governments that ruled the country since, were able to properly implement the provisions of the Amendment. Edirisinha is of the view that, this failure questions the supremacy of the Constitution and the rule of law in the country: “Constitutions that permit non implementation of its provisions and do not provide for an appropriate legal remedy in such situations, are flawed Constitutions.”
Highlighting the crisis of Constitutionalism within the country, he added that Constitutions cannot rely on political will or, the goodwill of the people in power, for success, and said that the basis of Constitutionalism is suspicion and scepticism of those who wield power: “This fundamental question, which underscores the crisis of constitutionalism in Sri Lanka, must be addressed.”
It is agreed among experts, that the APRC proposals are minus the 13th Amendment to the Constitution, for the mere reason that it aims to implement only ‘relevant’ provisions of the Amendment. There are many theories behind the curtailment of the devolution of power.
The cancer within
“Part of the explanation for the retrogressive nature of the APRC proposals is the extraordinary influence of the Jathika Hela Urumaya (JHU) and the Janatha Vimukthi Peramuna (JVP), on the Rajapaksa administration. The JVP has its cake and eats it too. Its members were elected on the UPFA ticket and it is clear that the JVP would not have gained such a large number of seats, but for such an alliance. Yet, it claims to be part of the opposition in Parliament,” Edirisinha opined.
However, he added that many of the older members of the UPFA, such as the Sri Lanka Freedom Party, Lanka Sama Samaja Party, Communist Party and Mahajana Eksath Peramuna have, by word and deed, indicated that a reasonable political solution, whether interim or longer term, must be 13th Amendment PLUS PLUS, if not federal in character.
Significantly, members of these political parties were instrumental in drafting the Constitution Bill of 2000 that went beyond the 13th Amendment.
“APRC proposals do not match the aspirations of the moderate Tamils. But, it does match the aspirations of Sinhala nationalist groups who refuse to accept that there is an ethnic problem,” Colombo University Head of Political Science Prof. Jayadeva Uyangoda said.
Oblivious to reality
He pointed out that the outcome of the APRC indicates several important facts: The dominant sections of Sinhala political parties, who are in power now, do not recognise that Sri Lankan postcolonial state needs to be reformed, in order to address minority claims for political equality and regional autonomy.
The war agenda has taken precedence over political reform agenda: “When there is an intensification of the ethnic war, political reforms are extremely difficult,” Prof. Uyangoda said and added that there does not seem to be an early resolution of the ethnic conflict.
To devolve or by how much
He, however, said that the 13th Amendment to the Constitution does entail a certain degree of power devolution. Yet, pointed out that the problem with the Amendment is, basically, a political problem: “For some people, it gives too much power to the provinces-the Sinhala nationalists, for some others, too little-the Tamil nationalists. So, the 13th Amendment is caught up between these two irreconcilable positions. The task of the APRC was to find a common ground between the two positions.”
He opined that the APRC has failed to find a common ground and instead, has found a minimalist ground, which is not acceptable to even moderate Tamils who support the present government.
The year 2008 is referred to as the year of war. From the first day, the country has seen nothing but bloodshed and accelerated violence. Especially, after the abrogation of the Ceasefire Agreement, the county has been on an intensified war footing costing many civilian lives. It is in this backdrop that the APRC proposals have finally emerged. Hence, most experts are sceptical of the low key two-page APRC document.
APRC defers 13th Amendment
“This government seems to think that once the LTTE is militarily defeated, there is no need for power devolution. In this scheme of things, neither devolution nor, the 13th Amendment makes any sense, because there is no political will on the part of the government to properly implement the 13th Amendment,” Prof. Uyangoda explained.
Referring to this issue as a problem of perspective and political understanding, he said that the ideal type of power devolution is extensive regional autonomy: “Yet, there is no possibility of this ideal finding acceptance among the major political forces. Even the ideal type requires political consensus. This cannot remain at conceptual level. However, at the moment, there is no possibility of the outcome of this ideal type.”
There are three perspectives, when it comes to power devolution: Federalism, 13th Amendment+and maximum devolution within a unitary Constitution, which amounts to no devolution. Prof. Uyangoda emphasised that there is a severe clash between these three perspectives, at the moment. Without resolving this clash, it is not possible to work out a perspective that is acceptable to the majority of the Sinhala, Tamil and Muslim communities.
“At the moment, we have all the ingredients in place for protracted war and violence,” he added. [courtesy: nation.lk]
Entry Filed under: Federalidea
11 Comments Add your own
1. Dias | February 19th, 2008 at 2:58 am
Unfortunately, this is the sad truth - we will have to wait until the rumblings of the war dies down to yet again get serious about solutions. But how long? one month? six? twelve? the latest projection from the President is eighteen months! Irrespective, what about all that we would have lost during this peiord? Leaving aside the economic loss, what about the young lives - of the Sinhalese and Tamil youths? the civilians caught in-between? What a travesty. What a shame.
2. A.Rajasingam | February 19th, 2008 at 10:02 am
There was nothing wrong in the 13th Amendment. What we should have done is to amplify it on realizing the impact of the Amendment. One must accept that there was no Senate to curb the powers of the President. 13th Amendment was passed as a partial rectification to the Constitution which eventually paved way for the entire country to be divided into Five Provinces. This is the way to ensure powers that were devolved to the Provinces. The Senate should serve as a checkmate to the powers of the President. Briefly that was no system of Checks and Balances as found in the US Constitution. This was a case of giving the power with one hand and later snatching with the other hand. The sincerity of the rulers became a questionable issue.
The successive governments that ruled the country were unable to properly implement the provisions of the Amendment because they were not sincere. When there is an unlimited power in the hands of the President with a false and baseless imagination of Federalism, this will eventually led to the deterioration of the stability of the country. It is only a question of powers between the Provinces and the Central Government. Why cannot the leaders look at the Constitutions of USA, India and Canada. The Canadian Constitutional model looks so promising that the Constitution classified two Heads of Powers between the Central Government and the Provincial Governments. If this can be done the limitations imposed with regard to police powers and the power over lands can be resolved without any effort. I cannot find any reason why the rulers are breaking their heads over the use of the word Federalism which has resulted in heavy loss of lives because of their ignorance. The 13th Amendment was a stepping stone towards Federalism which would have promoted harmony and paved way for economic development. JRJ and Dr.Colvin were the culprits of increasing the number of Representatives in the Parliament and insisting on a Unicameral system. Instead of increasing the number, they could have allowed to remain with 101 members in the House of Representatives and Six academically and professionally qualified Members for each Province to be elected in the Senate with a further Five Members appointed from the Professionals from each community to the Senate the present problem would not have arisen. The issue of Homeland for Tamils would not have arisen, instead it would have been a homeland for the entire Sri Lankans. It appeared that Politicians do not want to give priority to such simplified methods in the best interests of the country, but to their vested self interests. Further the Senate could have been given the powers to clip the wings of the President and even that of the House of Representatives on matters affecting the Provinces which also could treated as a System of Checks and Balances. Had such methods been adapted, no room would have been allowed for unwanted politicians and terrorism will be wiped out. Just imagine the crores of Rupees that were spent on fighting terrorism and on Parliamentarians which money could have been utilized for economic development. I am sure the majority of the Sinhalese will accept such a change in the Constitution with courage.
3. Gee Sampanthan | February 19th, 2008 at 10:21 am
It is good to know there are good people analyzing the situation and
it is possible one day these and other good people will be entrusted with the political and constitutional powers to lead the nation and bring about the political reforms and also the economic - equitable economic development and promote and foster peace in Sri-Lanka. There is hope…and hope for a change , a positive change that all are waiting for.
So, again good people , please get involved. Journalism is tainted by embedding and by becoming advocates of political parties and even the mouth pieces of generals. So, it is real involvement by good people that we can expect changes. Once elected these old guards represent no one, except themselves and continue only to plunder the nation..adding to her woes and pains.
4. lingam | February 19th, 2008 at 10:24 am
There are three perspectives, when it comes to power devolution: Federalism, 13th Amendment+and maximum devolution within a unitary Constitution,
Forth perspective is separation ??
5. Sam Thambipillai | February 19th, 2008 at 10:40 am
The South is either unable and or unwilling to solve the problem of the independence of Tamils in the North East.
This had been the history of the island since 1948.History always repeats itself. Here we are again. No internal solution would ever be forthcoming. Foreign intervention is important if we want peace through justice.
We should ask Britain to put things in order. They failed in their responsibilty to do justice. At least after 36 years they should work for justice.
6. Devinda Fernando | February 19th, 2008 at 4:28 pm
What just blows my mind is that these people like Sam Thambipillai is that they can’t accept a Unitary system for all in Sri Lanka. Tamils have to be Segregated out and treated differently like as if they are some sort of Special Minority?
The true irony being that these Tamils who advocate Ethnic Segregation in Sri Lanka all hold Foreign passports in Unitary Western Countries and they make no such unreasonable demands on these countries to which they hold citizenship?
7. Suresh M | February 20th, 2008 at 1:00 am
# 6 D.Fernando,
It is not difficult to understand that Tamils want their homeland back, and wanted the occupying Sinhala forces to go home. Leave us alone in our homes. Fifty thousand Sinhala forces are maintaining an open prison in Jaffna
8. R.Goonetilake | February 20th, 2008 at 2:16 pm
13th Amendment was opposed by TULF in 1987 and Anandasangaree was at the forefront of this opposition.
13th Amendment Debacle and the Farce that carries with it speaks volumes about the modicum of Rajapakshes and the Indian Govt who are the only ones in the IC to say anything in favour of this. India would stay in favour of the defunct 13th Amendment as it addresses their global, and regional interests better rather than addressing Sri Lanka’s own ethnic conflict resolution. This brings to light whether SL will have any leaders who would put Sri Lankan Interests before any other?
Ethnic Segregation and separate State for Tamils would not have arisen if Sinhala Leaders had acted in an impartial manner and have a constitution, state organs thats impartial to all communities.
We wanted a sinhala state in the island and Tamils who had their own state would want their state back because the farranged marriage forced upon them by the British did not stand good to Tamil State.
The simple fact is that British played spoil sport in allowing the Sinhalese to take over created this monster. We cannot blame the British for all our ills as we as educated people should have done better to create a “Secular - Multi Ethnic Nation” that everyone can call it home.
It would be wise for all and for the future generations’ sake that we let Tamils go or find an amicable Power -Sharing Arrangement with the Tamil State and go forward.
At the moment, Sri Lanka is left behind in all spheres of the global developments. There are many south asian nations which would grow similar to Singapore and we will send our wives and sisters to work in their houses.
Devinda Fernando doesn’t care whether his aunt wipes plates and dishes in another asian country for life…!
9. Devinda Fernando | February 21st, 2008 at 11:22 am
*** It is not difficult to understand that Tamils want their homeland back, and wanted the occupying Sinhala forces to go home. Leave us alone in our homes. Fifty thousand Sinhala forces are maintaining an open prison in Jaffna ***
Suresh, If you want to debate me please do so using some form of logical argument, try using sentences that articulate your point(s), address what I say then counter it with some examples, or cite some sources,…. this way people will not continue to think of you as a Tireless Parrot of LTTE Talking Points.
10. Devinda Fernando | February 21st, 2008 at 11:28 am
*** Devinda Fernando doesn’t care whether his aunt wipes plates and dishes in another asian country for life…! ***
If that is here choice then why not…? .LOL!
I advocated freedom to do whatever you want. Just take responsibility for the consequences of your actions, ..that’s all.
Don’t sit here criticizing Sri Lanka, when we all know why we a re lagging behind economically. It is obvious the more Resolved and Patriotic citizens of Sri Lanka will have to Fix this mess while Nay-Sayers sit there on their High Chairs Pontificating and assigning Blame for Sri Lanka’s Short comings. That’s the difference between those of us who care and the rest of the HERD like you. Nothing will ever be good enough for you and you certainly will never raise a finger to fix it yourselves. Like the Servant Mentality you have had engraved into your skulls you will always wait for someone else to tell you what to do.
11. ilaya seran senguttuvan | February 22nd, 2008 at 7:57 am
Men like R. Goonetilake (8) makes one think it is still worth staying in Sri Lanka and fighting for the country and united people we lost over 60 years ago. If we have a few dozens of such fine Lankans
we will have a country and society worth feeling proud about.
In such a society I certainly would like Mr Goonetilake to be my immediate neighbour. I hope those who influence matters in this government of President Rajapakse in the peace process should
read Mr G’s piece over and over again.
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