EVILS OF 13TH AMENDMENT
Posted on October 10th, 2012

By Gamini Gunawardane

We have to be thankful to the Supreme Court for their determination on the proposed “Divineguma Bill”. It exposed further inherent dangers of the 13th Amendment other than police and land powers. If only the Supreme Court had in 1987 taken such a stand when this draconian Amendment forced on us by India quite unasked by the Sinhalese, Tamils or Muslims, that it required the approval of the whole country through a Referendum, we may not have been in this pass today.  On another occasion the Supreme Court took a similar independent stand which facilitated the de-merger of the Northern and Eastern Provinces. This again underscores the importance of independence of the Judiciary, if any proof is required.

In hindsight, one is tempted to think whether this country missed a golden opportunity in its omission to follow up on the immediate aftermath of the defeat of the LTTE in May 2009, to take steps to abolish the 13th Amendment before our adversaries could recover from the shock of defeat. Had this been done, after wiping out Terrorism 3 years ago this country would not have been under pressure from India, TNA and other interested parties elsewhere in the world saying that it should now fully implement the 13th Amendment to complete the process of “ƒ”¹…”devolution’ as a possible “ƒ”¹…”political solution’ to the so called “ƒ”¹…”national problem’. It has deprived us of the opportunity to examine with clarity whether this is the best form of devolution that fits this country. It has further denied us the opportunity to re-examine whether the implementation of this amendment does not undermine the basic concept of a unitary state violating our Constitution.

The government may get away this time, by managing to get a kind of approval of all the Provincial Councils except of the Northern Provincial Council which is non-existent, because they command the majorities in all the other functioning Provincial Councils, for the moment. The TNA has already stated that they would oppose the adoption of this Bill in the Eastern Province. If the Northern Provincial Council was functioning and if the TNA was in power there (which is most likely) this Bill would not receive their approval. And the implication is that the Bill if passed,( not withstanding sec. 154(G) of the Constitution)  might be inoperable in the Northern Province unless/or even if it is passed with 2/3 majority in Parliament. What does it in effect mean? That the mandate of the Center will not cover the whole country.  Can a small country afford this? What if some other Provincial Council which had captured power (for instance by the UNP) also take up such a position? Could not this be a temptation to look for cessation by other parties? Thus, there is lurking danger of a possible dismemberment of this unitary state which is the most fundamental feature of our Constitution. It is also a threat to Territorial integrity of this country. 

The government may be able to get away this time because it so happens that they enjoy a 2/3rd majority and because it has managed to have majorities in most provincial Councils. This is too much of a coincidence to be treated as a likely regular arrangement in the future too. There is no guarantee that all future governments would enjoy similar luxury or that there will be a shrewd political manipulator as the present incumbent at the helm all the time.

One has to bear in mind how tenuous it is even with government’s own majority and despite their shrewd moves, it could still be out smarted by even a section of their own group who are not happy with the dictates of the Party. This was demonstrated by what happened in the North Central Province in electing a president for that council.

The Provincial Councils were introduced in the 13th Amendment by India based on its own constitutional model, despite the fact that Sri Lanka is 61 times smaller than India in terms of geographical size and many times more in terms of population. Besides India had never been a unitary state until it came under the British as British India. Thus it is a poor model in many ways, unsuitable for this country. The British colonial government in their pragmatic wisdom retained Sri Lanka’s unitary character as the best form of governance for this country. They improved it further with an effective network of roads, railways and telecommunications.  Now it is further enhanced with radio communication, mobile phones and internet facilities. These facilities have made this country shrink still further helping it further effective in governance, trade and general co-ordination making Provincial Councils superfluous and more an obstruction to efficient de-centralized control and achieving cohesion in governance and inter-community relations.              

It is also necessary to look at the latest developments in the political scene in India. It would appear that West Bengal’s Mammata Banerjee has withdrawn her support to the Union government making it unstable. Earlier she undermined Central government in regard to the arrangement with Bangladesh to share the waters of river Ganges. Similarly, Tamil Nadu government has been bringing significant pressure on the central government owing to their sympathy towards the LTTE and latterly towards secessionist tendencies in Sri Lanka. It is alleged in some quarters that Tamil Nadu government was able to effectively twist the arm of the Union government to vote against Sri Lanka at the last session of the UNHRC at Geneva which no doubt damaged its image as the leader of SAARC countries. The dominant feature is that latterly the state governments India are asserting more power in that country to reduce the power of the center and thereby effectively weaken the authority of the Central government which could potentially weaken India’s political integrity as a whole. This is not in the best interest of India’s strength as a nation especially in the face of threats of possible balkanization of India in order to prevent it from emerging as a strong power. There are lessons that we have to learn from these developments. We need to recognize the potential of the provincial councils arrangement in weakening the political strength of this country one day.

Also we have to take into account the close proximity of the 60 million strong Tamil Nadu state to especially the Northern Province of Sri Lanka and the ethnic affinity between that state and the Northern Province where the cessesionist forces are looming large. What if Tamil Nadu state one day succeeds in breaking away from the Indian Union and directly interfere with Sri Lanka’s territorial integrity by moving to annex Sri Lanka’s Northern Province to it? There is nothing to stop them if they decide to do this. The violence generated there on Sri Lankan visitors to that State is only an indication of their strong sentiments and desire to control events and politics in this country. In fact, before the advent of the Western Powers, down the ages this country has been plagued by invasions from South India from time to time. Thus, a resumption of this threat again is not quite impossible. Also we need to take into account that judging by the writings appearing in journals and newspapers of India, the impression there seems to be that India is able to dictate terms to Sri Lankan governments and that Sri Lanka should simply bow down to their dictates! Hence I think Sri Lanka has to bear in mind this threat to its security and territorial integrity which is looming large, in dealing with the threat of 13th Amendment.                                                        

This is perhaps the last opportunity for Sri Lanka to remedy this great error, though of course it is not the present government that created it. As much as this government was responsible for the dismantling of the 30 years old LTTE Terrorist ensemble and save this country from disaster, it is left to them to courageously act now to eliminate the final obstacle to national unity. But let us identify the real enemy. The real enemy is not the Judiciary but the 13th Amendment. Let us shoot the enemy, instead of trying to shoot the messenger. That is why we should be thankful to the Judiciary for providing this opportunity. Perhaps this alone may ensure another term in office for this government whatever its faults may be. And District Council may be the optimum level of devolution for effective national re-integration.  

11 Responses to “EVILS OF 13TH AMENDMENT”

  1. Sunil Vijayapala Says:

    Thanks to the wise old fool JRJ – we are in a mess today. There is a lively debate on abolishing the 13A in public forums but we don’t see Politicians in SL debating on this issue or even discussing it. Some Political organisation should initiate this and take it to the masses to educate them and instigate Sri Lankans.

  2. Kit Athul Says:

    If the 13A is nullified, then what? It should be THUN RATA KRAMAYA, but nothing else. RUHUNU RATA, MAYA RATA AND PEHITI RATA Nothing else.

  3. Lorenzo Says:

    As Kithsiri says we have to have a fallback option. Otherwise India will rush in with another doomed solution.

    Thun Rata solution is best. I agree. But no power for the regional rulers. They should be like India’s president.

    If only JR had consulted the people!!

    He held a referendum in 1982. Why coulnd’t he hold another in 1987? Then no violence either.

  4. Dilrook Says:

    District is a worse and more dangerous devolution unit.

    Just imagine there were 3 DCs instead of EPC – Trincomalee DC, Batticaloa DC and Digamadulla DC. Trincomalee DC will have SLMC rule, Batticaloa DC will have TNA rule and Digamadulla DC will also have SLMC rule through kingmaking deals. This is worse disintegration.

    Jaffna and all Vanni districts will be under absolute TNA rule. No change there between DC and PC.

    Nuwara Eliya will be under CWC rule. National parties become irrelevent. Thereafter it will follow TNA politics.

    Even Colombo and Puttlam DCs will have SLMC and TNA (DPF) kingmakers given the political polorisation between UNP, UPFA and JVP.

    Gamsabha decentralisation is the best.

  5. ranjit Says:

    I have 100% faith in our President Mahinda Rajapaksa without any doubt. I dont think he will do any foolish thing to make our citizens angry after all our sacrifices for almost thirty years. He knows what he is doing and he knows what to expect from the public specially Sinhalese if he do something unforgivable so let’s wait and see. We Sinhalese must be united to fight any evil whether from outside or within. We voted this Government to power because it was better than other parties and they should respect our wishes whether they like it or not the Majority wish. I hope they will listen to the Majority and take advise from the Majority than outside and inside pundit Modayas.

    Let’s hope for the best and build a strong Sri Lanka with the Sinhala Majority living side by side with other races and faiths in Peace and Harmony.

  6. Fran Diaz Says:

    Imposed on Sri Lanka under Duress, the 13-A is Null & Void in any court of law in the entire world. It was imposed on Sri Lanka during the time of the Cold War of the 1980’s. The Cold War is over. Why keep the 13-A ?

  7. lingamAndy Says:

    EVILS OF 13TH AMENDMENT is India !!!

    Let us shoot the enemy !

    Why keep the 13-A ?

    Soon or later We will prepare for Eelam war VI !

  8. ranjit Says:

    Dear Lingam dont you ever dream of any Elam even in your dreams. Wars are over for Sri Lankans. We never likes war or never wanted any war to happen in my homeland again. We will shoot the enemy when we want and at the orrect time.Dont you worry my dear We Sinhalese are lions not tigers. King of the animal world. We fear none.

  9. lingamAndy Says:

    ranjit
    We Sinhalese are lions not tigers. King of the animal world. We fear none. !
    Eelam dream come to the end When Indra Ghandhi dead !
    Our Tamil people living in Sri Lanka want live nothing else !!!
    Identify real enemy to shoot no point on shootnig messanger (thats is your Tamil Lankan brothers) once & for ever ! & We will with you as We were with you in IPKF time !

  10. ranjit Says:

    Thanks Andy let’s live as one then no one can destroy our future. Let’s build a strong Sri Lanka together.Dont be afraid to do the right thing in your life Be like MALALA the sweet girl of Pakistan. FEAR NONE EXCEPT GOD.

  11. Fran Diaz Says:

    In another article, mjaya has said to challenge the 13-A in Courts. We agree.

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