The 13th Amendment, Anti-Indianism and Sri Lanka’s Security Imperatives
March 24th, 2008
by Dayan Jayatilleka
One of the most laughably absurd of all the criticisms directed against the incumbent administration, is that its commitment to the full and immediate implementation of the 13th amendment which makes for provincial autonomy, is somehow a betrayal of the election mandate of President Rajapakse as contained in his manifesto. This criticism, levelled by radical ultranationalists, betrays triple ignorance: ignorance of a Constitution and its role in the polity; ignorance of the election manifesto and mandate of the incumbent President; and ignorance of forms of government and systems of state.
A Constitution is the basic law of the land. No election mandate or manifesto ranks above it, nor can it. A president is elected under the Constitution, and his most fundamental duty is to uphold the Constitution. If a Constitution is to be changed it must be according to the process and procedure laid down by the Constitution itself.
It seems to have been forgotten by the critics that ‘the 13th amendment’ is merely shorthand for the 13th amendment to the Constitution. The 13th amendment is part of the Constitution itself. As such, President Rajapakse is sworn to uphold it, as would be any other President, so long as the amendment is not repealed by a lawful, constitutional process, i.e. a process laid down in the Constitution itself. There is no choice in the matter, and no electoral mandate can conceivably supersede the supremacy of the Constitution and its provisions.
The argument that the 13th amendment was the product of gunboat diplomacy is not only an over-simplification, it is also irrelevant. The 13th Amendment was the result of a whole chain, an entire series of causes and effects, one of which was coercive diplomacy. What makes it irrelevant is that Constitutions are often products of conflicts, even wars, including wars which result in interventions and more dramatically, occupations, the Constitution of Japan being a case in point. Whatever the circumstances and chain of causation, this is the form that History has taken in the case of a particular country. This does not make a constitution eternal. What it does however is to ensure that such amendments or entire Constitutions cannot be repealed other than by duly elected and constituted, Constituent Assembly. Nothing of the sort has taken place in Sri Lanka, with regard to the existing Constitution or the 13th amendment.
The second display of ignorance of the critics pertains to the mandate of President Rajapakse, or ‘Mahinda Chinthana’ as it is called. The aspect of the mandate that concerns this issue is the pledge to remain within, or, to put it more strongly, uphold, the unitary form of state. President Rajapakse himself has, on solemn official occasions, spelled out his stand as ‘maximum devolution within a unitary state’. The recent pledge to fully implement the 13th Amendment is in no way a contradiction of the election mandate, because the 13th amendment was ruled two decades ago, and has been recognised ever since, as within the parameters of the unitary constitution.
What the President has done is to commit himself to the reactivation and full implementation of a part of the Constitution which has remained dormant because of the armed actions and entrenched presence of the separatist LTTE.
The third area in which ignorance is displayed by the critics, concerns forms of state and government. The government is accused of attempting to introduce federalism, when the Supreme Court has clearly ruled that the 13th amendment and resultant provincial autonomy does not amount to federalism. The assumption of the critics is that any form of devolution of power, of power sharing, is federal in character and a transgression of the limits of the unitary state. This betrays a notion of the unitary state as a purely centralised state with no power sharing between centre and periphery. In turn, this betrays ignorance of the many, well known systems of devolution and regional and/or provincial autonomy in non-federal systems, including unitary ones. These range from China to the UK and from Spain to Indonesia and the Philippines.
The radical ultranationalists combine their critique of the promise to reactivate the 13th amendment with retro-chic anti-Indian sloganeering. These slogans cannot have an immediate mass resonance because the old context of cross-border (some alleged state-sponsored) terrorism and overt military incursion is long gone. However, the political movement coining the slogans has a longer-range objective, which is sought to be achieved by a two-pronged tactic. By preventing any attempt at devolution, i.e. internal reform which alone can forestall external interference and by simultaneously decrying attempts at intervention, the movement hopes to generate a self-fulfilling prophecy, much as it did in the 1980s. The salient difference between the strategy of the 1970s and ?80s and that of the early 21st century is the transparent hope of influencing and inheriting much of the military rather than going up against it as in 1971 and the late ’80s.
Permitting the blockage of internal reform ‘devolution’ can prove nothing less than suicidal for Sri Lanka. We need the support of Asia, in the face of Tamil Diaspora driven pressure from the West. We need the support of both rising powers in Asia: China and India. China has no Tamil lobby, shares our views on state sovereignty and secessionism, and has enjoyed excellent ties of long standing and bipartisan character. It is a reliable friend and ally. However, we also need the support of our neighbours. No one can harm any country, if its neighbours stand with them. Without the support of one’s neighbours, one is vulnerable. India is our neighbour. She is also a rising power on an upward curve of global popularity she is courted by all others. Given the realities of geopolitics and geo strategy, we shall not be safe if India turns against us, or simply turns away from us, even if we enjoy China’s full support.
Having balanced the threat from the Tigers, the Tamil Nadu factor and doubtless many other constants and variables, India has, at the highest levels, stated its position on Sri Lanka. It welcomes, as a first step, the pledge to fully implement the 13th amendment. The recent critical statements by India’s two Communist parties, the CPI-M and the CPI, indicate that political sentiment in India may be approaching a tipping point in relation to Sri Lanka.
Certainly the imminence of general elections in bound to have an impact, and we must note that any non-Congress administration may have fewer anti-LTTE memories than a Congress government in which Rajiv Gandhi’s widow plays a decisive role. Sri Lanka must get India on board without delay, and the modest price for that support is the full implementation of the 13th amendment, i.e. of our own Constitution.
The recent naval episodes also underscore the need for a more active Indian role in interdiction. Whatever the domestic political cost of antagonising the radical ultranationalists, it is dwarfed by the potential security cost of alienating India. Whatever the pain and damage that the radical ultranationalists can inflict, these are dwarfed by the pain and damage that will result from a laissez-faire policy on the part of our neighbour which enables the LTTE to operate relatively freely from or through Southern India. This window of opportunity will not last for long. The global economic slowdown/downturn is bound to impact negatively upon us, while the results of the US elections could impinge dramatically.
As Mao pointed out, in war and politics, it is not only a matter of enemies and friends ‘there are also the intermediate forces. These have to be won over or at the least neutralised. The war or the political struggle is won by that side which wins over or neutralises the intermediate forces, thereby isolating the main enemy. If on the other hand, one is oneself isolated, one loses. The 13th amendment is the method by which the intermediate forces, domestic and external’ the moderate, non-Tiger or anti-Tiger Tamils, and India-can be won over. Therefore, the full implementation of the 13th amendment as promised, is nothing less than an urgent strategic and security imperative.
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(The writer was Minister of Policy Planning & Youth Affairs in the North-East Provincial Council set up under the Indo-Lanka Accord and the 13th Amendment in 1988. The views in this article are strictly the personal opinions of the author).
Entry Filed under: Federalidea
14 Comments Add your own
1. j.muthu | March 24th, 2008 at 9:31 am
Hello Mr dayan jaydilleka,
Its too late for your stupid suggestion. You are fighting for a loosing battle. tamils never ever going to accept cheap mad solutions. Our minimum demand atleast more than the federal solution, if not one day international players force srilankan terrorist government to accept a kosovan style of solution. forget india, dont use india for your own benefit. soon indian policy will change reagarding tamil issue. do not regret for your madness.
2. Devinda Fernando | March 24th, 2008 at 10:26 am
The Tamil Diaspora don’t care about Tamil Rights in Sri Lanka. They only make noise to aid their agenda of Eelam. Nobody will stop and think for one minute to see that the way forward is Equality for all and thus the end of Race Based, Religious Based, and Communal Politics.
Idiot Politicians Like Mano Ganesan (Western People’s Front), Rauf Hakim (SLMC), Thondoman (CWC), Champika Ranawaka (JHU) and EVERY SINGLE One of those Monkeys of the TNA are going to become irrelavant very shortly. Basically Politicians are going to have to start actually running for electin based on Wha they can offer and do for the people…not what race they are and how they can further the selfish interests of their ethnic group over the rest of other Sri Lankans.
Unitary is the only setup that will lay the foundation for a solid country, then Equal citizenship and rights can be properly addressed. Devolution of power to minorities is nothing more than Separation in the making,… Lets do this right once and for all. Enough TIme and Blood has been wasted on Communal Politics.
3. ratna | March 24th, 2008 at 12:26 pm
The underline states that “The Writer was Minister of Policy Planning & Youth Affairs in the North-East Provincial Council”.
My friend was taken away, at gun point, by this minister’s Tamil National Army to join His team (I was lucky because I was married and my wife was beside me).
Today, He is on the same payroll under the same person who was Totally against the Provincial Councils and 13th amendment.
I remember reading somewhere that, “If the money is right my mother is for sale”.
4. dias | March 24th, 2008 at 6:33 pm
The real shame in the Sri Lanka matter is that extremists on both sides are preventing the evolution of a system that would be a compromise solution - with inherent capacities to meet the needs of all Sri Lankans of all communities. #1 Talks about a “more than the federal solution.” - if the implication is a federal-like setup with a separate armed force, then it certainly would be one of kind in the entire world, i.e. two state players with two separate armed forces. Such an option would only serve to further divide communities defeating the key reason for federalism -to keep entities together. On the other hand, #2 while rightly advocating ‘equality’ and denouncing ‘communal politics’ is emphasizing the ‘unitary’ model as the “only set-up” with capacity to ensure egalitarian equality among all Lankans. While no doubt that a large number of countries with plural societies have had great success with the unitary model, in Sri Lanka, unfortunately this has not been the case. Therefore, it is highly unlikely that a unitary formula - irrespective of variety, i.e. with or without the 13th Amendment and/or with any other bells and whistles - could ever be packaged and sold as a credible solution to most Tamils or to the final arbiter, the international community, primarily, India, US and the EU. Therefore, what is highly likely is that the eventual solution will be along the lines of a federal solution - but not necessarily one along asymmetric, dual-state ethno-federalism and certainly not a form of federalism with two separate armed forces, i.e. anything “more than federalism”. Most probably the final outcome will be one along symmetric federalism - but unfortunately, we are very many years from any solution.
While I concur with the author’s assessment, the government’s attempt at the full implementation of the 13th Amendment can only be considered a first baby step in the very long process towards a sustainable federal-like solution.
5. Suresh M | March 24th, 2008 at 9:41 pm
#2 Devinda Fernando,
I agree that unelected Basil, Gotha with JVP thugs are the model politicians who can teach our Tamil speaking politician on ‘democracy’.
I also applaud Dr.Dayan Jeyatillaka is their representative in Geneva on HR!
6. Dayan | March 25th, 2008 at 12:05 am
Tamils never rejected the Unitary State, that is why the Ceylon did not see an Ali Jina.
But the young generation of Tamils and Muslims feel that they have to fight the battle of their grand parents.
The solution is to satisfy the minorities in Sri Lanka without any more delay such as federal state with the protection of a third party, UN.
7. M.Thiru | March 25th, 2008 at 1:13 am
1. Sinhala Nation ( Srilanka ) and its representatives like Dr.Kohena, Dr.Jayatilleke always claim in the international arena,
that Srilanka is functioning as one of the oldest democratic nation in Asia and its democratic institution are functioning well. If that is so why the existence of the 13th amendment has to be resurrected after 2 years of the formation of the APRC ? Why India which was always briefed by Norway since signing of CFA has to endorse implementation of 13th amendment is a good starting point and at the same time see the whole problem as a terrorist problem and fully support the abductions, kidnapping etc the war carried out by th GOSL army and paramilitaries ?
2. Anti South Indianism and not anti Hindianism has always been there. It is worse since 1948 because the British passed the power to the Sinhalese together with the sovereignty of Tamil speaking people of whatever origin. It will not go away until the Tamils of South Asia get back their equal status.
JR Jeyawardne showed his anti Indian feelings. Witnessed with calm his naval officer to attacking Rajiv. Premadsa & Mahinda Rajapakse, JVP opposed the Rajiv - J R signed agreement and thus the 13th amendment.
When one Sinhalese leader agrees another will oppose. It will continue that is the DNA of Srilankan democracy.
3. What is the size of Srilanka in terms of population and economy ? What is the size and the demographic make up of of SL armed forces ? How much is spent on internal defence to kill their own citizens who wants to live peacefully in their homelands and manage their affairs to maintain the Sinhala nation’s rule ? When it is an island what real external security threat they have ? Where does GOSL get money for all these because once you become a debtor you are under the control of the lenders. Economic weakness created by the poor political leadership of the Sinhalese leaders since 1948 is the security threat not the Tamils and their struggle. If proper devolution is given to the Tamil speaking people by stopping the war will solve both the security problem and economic problem of both the nations within the Island.
8. Dayan Jayatilleka | March 25th, 2008 at 6:22 am
The Tamil National Army (TNA) was formed by Perumal well after I had resigned from the North East Provincial Council.
9. Dayan Jayatilleka | March 25th, 2008 at 6:25 am
dear j muthu,
Tamil ultranationalism, especially in the Diaspora, goes through many fantasies which never come true.
From the 1950s it was the Israel fantasy. Its 2008 and still no Tamil Israel.
From 1971 it was the Bangladesh fantasy. Still no Tamil Bangladesh.
Now its the Kosovo fantasy.
Ah well….
10. ilaya seran senguttuvan | March 26th, 2008 at 9:08 am
Lot of wisdom here for MR’s GoSL to follow on the need to be true to the 13th amendment; take India aboard. Dayan accuses many critics of “ignorance” of the Constitution. A lot of this “ignorant” could well be seated on the ranks of the Govt side in Parliament
who might do well to read Dayan’s piece here. I am all with you for
the faithful implementation of the 13th amendment will go a long way to heal our wounds - and I say this should be inclusive of the central feature of the original legislation that was in place viz:the merger of the North-East Province - of which you were once uncomplaining Minister, as we recall. The Supreme Court only said the way the merger was effected was ultra vires the Constitution and left room to suggest if it is presented in a modified form the learned judges will not stand in the way. We are also with you when you eloquently state “his (MRs) most fundamental duty is to uphold the Constitution” Absolutely right. So it follows he must uphold the Constitution and not stand in the way of implementing the 17th Amendment. You must point to the President all his appointments since his assumption of office are invalid. More so, that the President can be impeached for
violating the articles of the Constitution…You speak of coercive Indian diplomacy and the need not to be anti-Indian - contradiction in terms…Finally silencing those who say you fall far short of “advisor” your good prose “permitting the blockage of internal devolution can prove nothing less than suicidal for Sri Lanka” That is what it has been so far. Point is your boss and friend MR is unable to restrain his friends in the JVP/JHU/SU and who else - to see this reality and support the Govt to bring in the badly needed peace to our country.
11. j.muthu | March 26th, 2008 at 11:37 am
Mr Dayan,
you never answer properly, did anyone predicted collapse of soviet union, yugoslavia. after cold war so many new countries accepted by international community. most of the countries oppressed by foolish governments. Tamils also suffered enough by budhist sinhala brutal forces. Time will come you will regret your own faults. any way again i wil tell you tamils much much better off with their own land. sinhalease still suffer by their own mad leadership.
12. Devinda Fernando | March 26th, 2008 at 5:04 pm
***I agree that unelected Basil, Gotha with JVP thugs are the model politicians who can teach our Tamil speaking politician on ‘democracy’. ***
Suresh,
Gotabaya is not a politician, he is the Defence Secretary - that has always been a Presidential Appointment position. The JVP have all been elected to their Seats in Parliament and Basil’s appointment to fill an existing MP spot is completely legal in SL political rules.
TMVP are the ones going to represent the Tamil people in the East. I am sure they will do a hell of a better Job than the LTTE have done in the past 18 years.
13. Sri | March 27th, 2008 at 6:35 am
Dr Dayan, I am happy about this strictly personal opinion.
This is really addressed to JVP and I hope a follow up should be addressed to the present leaders in the government.
I reproduce below the following extract from your article to facilitate my comments. .
‘A Constitution is the basic law of the land. No election mandate or manifesto ranks above it, nor can it. A president is elected under the Constitution, and his most fundamental duty is to uphold the Constitution. If a Constitution is to be changed it must be according to the process and procedure laid down by the Constitution itself’.
Agreed, and excellent !
But in your article you are referring only to the 13th Amendment to the Constitution.
Is it because you wanted to find fault with only JVP?
.
If you consider the other amendments such as 16th and 17th Amendments, then others more responsible are at fault for non-implementation.
I give below some salient features of the 16th amendment as many of your readers seems to be ignorant of the provisions of this Amendment.The bill was certified on 17th December 1988.
Article 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 pf public records and the transaction of all business by public institutions of all the provinces of Sri Lanka other then the Northern and Eastern Provinces where Tamil shall be so used.
Provided that the President may, having regard to the proportion which the Sinhala or Tamil linguistic minority population in any unit comprising a division of an Assistant Government Agent, bears to the total of population of that area, direct that than 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.
Art 23.(1) Language of Legislation
All laws and subordinate legislation shall be enacted or made and published in Sinhala and Tamil, together with a translation thereof in English.
Provided that Parliament shall, at the stage of enactment of any law determine which text shall prevail in the event of any inconsistency between texts.
Anyone who reads the 16th amendment will agree that the language issue is solved to the satisfaction of everyone, you can’t ask for more.!
But Dr Dayan, why you are not worried about the implementation of this amendment which will solve the language problem once and for all.
Not only you but the civil society is also silent.
No one other than DEW .Gunasekara seems to be aware of the existence of this amendment.!
The 17th Amendment at least everybody talks of .even if it is not comprehensive enough!
Dayan, Please write about 16th and 17th Amendments also and let us have more and more of your personal opinions!
14. roshann wickremesinge | March 27th, 2008 at 4:01 pm
Dayan,
Stop all your nonsence.. You are defending brutal regime, one day you will pay your sins. My self as a budhist, never ever going to defend rajapakse thugs. Tamils desrver better than ltte or your mad brutal govt
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