A REFERENDUM UNDER THE ARTICLES 80 (2) AND 85 (1) OF THE CONSTITUTION IS THE BEST WAY TO SAVE MOTHER LANKA
Posted on June 13th, 2013

Chanaka Bandarage, Lawyer

The Tamil National Alliance (TNA), the former LTTE proxy in the Parliament, will win the September NPC election easily.

Holding of the NPC  election under the 13th amendment (irrespective of whether the Land and Police powers are removed or not) will lead to creation of the Tamil Eelam.

Even two weeks ago, a TNA MP publicly stated that he does “not  believe in a power sharing arrangement under a unitary state” (Mavai Senathrajah MP, General Secretary of the TNA – 3 June 2013: Daily Mirror). In Geneva early this year the TNA lobbied for the Tamils right for self-determination (ie, a separate state). Last April in London, they lobbied against CHOGM being held in Sri Lanka.  TNA have stated that the NPC election is a “ƒ”¹…”referendum’ for a separate state by the Tamil people.  In such an environment, how can the Nation agree to give the administration of the Northern Provincial Council to TNA; a group that is actively advocating secession?

The Government and people of Sri Lanka should do everything possible to stop the TNA from forming the NPC Government “”…” rather than doing things to facilitate them.

  • Currently, the  JNN and JHU have started public campaigns to further amend the 13th  amendment. Their action is praiseworthy. Both parties are campaigning to remove the Police and Land powers from the Constitution. They are happy for the NPC election to be held afterwards. We say this is still dangerous. The two parties do not favour a referendum.

We say giving  such important powers as health, highways, irrigation, environment, education, justice, prison, fisheries etc (the very long list of concurrent powers in Schedule 9 of the 13th  amendment, plus the Provincial Council list; effectively they are federal powers) to a group who are advocating secession is akin to “ƒ”¹…”entrusting the surveillance of a chicken coop to a fox’. 

The future TNA Government will seriously discriminate against the Sinhalese. They will not allow Sinhalese to re-settle in the North. They can even block the Sinhalese from travelling to the North. The TNA MP Mr Suresh Premachandan recently threatened the Sinhalese who are resettled in Navatkuli Village near Jaffna (6 km from Jaffna) that they must return to  the South. These Sinhalese families who speak fluent Tamil have lived in the North for several generations. They now live in utmost fear not knowing what will happen to them after the Northern Provincial Council election. There are similar Sinhalese villages in the North. 

For JNN/JHU actions to succeed a 2/3 majority from the Legislature is required. It is unlikely that such a majority can be obtained from the current Parliament. Already 31 MPs in the Parliament have formed an association to protect the 13th amendment. The JNN/JHU actions can take long time to bear results. Note, the NPC election is scheduled to be held on 7 September 2013 (within less than 3 months time).

  • Action by the Government “”…” the Government intends to abolish the  following 2 Articles, which is very good:

Article 154A (3) “”…” that allows the merger of the provinces (after forming the Government, it is possible that the TNA can merge with the East and eventually create the new state, “ƒ”¹…”North-Eastern Sri Lanka’ “”…” encompassing 1/3 of the current Sri Lanka’s land mass and 2/3 of the coast.

Article 154G (3) “”…” Any  Bill in rgards to matters in the Provincial Council List shall become law only if they are  passed by every Provincial Council.

The Government also intend to seek opinion form the Supreme Court, presumably under Article 129 of the Constitution  (it is not clear on what matters that such opinion will be sought).

Expecting the Legislature to solely safeguard the Nation at this most crucial juncture is too much of a risk. The politicians have failed the country miserably. The civil society must rise and demand speedy, positive action from the Government. Mere removal of the Land and Police powers from the concurrent list (9th Schedule), and other minor changes will not eliminate the threat to the country’s sovereignty and territorial integrity.

As stated before, the Legislatures can take the people for a ride again. It is foolish to expect that they will provide 2/3 majority to revoke the 13th amendment entirely. Abolition of the 13th amendment, through a national referendum is the only and safest remedy available to save the country.

Why Referendum is the best and easiest way to protect the country?

The writer, after his  thorough  study of the Constitution states with confidence that the best and most simple way to abolish the 13th amendment is by way of a national referendum, using Articles 80(2) and 85 (1) of the Constitution (Note, these provisions have not been the subject of discussions anywhere  before). Changes to the Constitution, using these two provisions, will not require obtaining approval from the Parliament (can do it without even having a Parliamentary debate), furthermore, there is no need to refer the matter to the Supreme Court.

The 3 stage process is as follows:

1)  Per Article 80 (2): A Bill to abolish the 13th amendment should be put for the approval of the Cabinet of Ministers (a simple majority in the Cabinet is sufficient). The Cabinet of Ministers should issue a Certificate stating that they intend to submit the Bill for approval by the People at a Referendum.

 2)  Per Article 85 (1): The President will have to submit the Bill to the people by Referendum

It is suggested that the following question should be asked from the people at the Referendum (to be held before 7 September 2013):

 “ƒ”¹…”Do you agree to abolish the 13th amendment to the Constitution, that was enacted in 1987, that has created the present Provincial Council system?’

 If the “ƒ”¹…”Yes’ vote has obtained majority of the votes, then,

 3)  Per Article 80 (2), The President is required to issue a certificate  in the following form: “This Bill/provision has been duly approved by the People at a Referendum.” 

 The above 1), 2) and 3) activities are sufficient to abolish the 13th amendment. Once they are successfully carried out;

 that will be the end of the Provincial Councils (all 9 of them). The Country will be saved!

 Note Article 4 (a) of the Constitution reinforces the above process “”…” “ƒ”¹…”the Sovereignty of the People shall be exercised and enjoyed by the People at a referendum.’

 Let us say this to the West:

 In 1987, the 13th amendment was enacted using “ƒ”¹…”illegal’ means “”…” ie, without seeking consent of the people at a referendum. There  is enormous opposition against the 13th amendment in the country. Seeking the people’s consent now, even belatedly, is the most democratic thing that the Government can undertake. Allowing people to express their opinion is the most important premise of western democracy.

 Let us say this to India:

 The Government may have given assurances to India that the NPC election will be held under the full 13th amendment, which assurances are not legally binding. They were given to India, a friendly neighbour, in good faith. However, a situation has arisen there is tremendous opposition to the 13 amendment among the populace. The people have a reasonable and genuine fear that holding of the election under  the 13th amendment will allow the TNA to split  Sri Lanka and form the Tamil Eelam that they so desire to create. Holding of the referendum is a decision by the Cabinet of Ministers, not by His Excellency the President. Whilst the Government regrets that it may not have fully abided by the assurances given to India, at the moment the Government has absolutely no alternative but to seek mandate of the people at a national referendum. India will agree His Excellency the President of Sri Lanka is elected by the people of Sri Lanka; he has a duty of care to them, not to India.

 We urge the Government to conduct informal discussions with the West (and India), especially the US sitting on equal footing and explain to them why it is imperative that the 13th amendment must be referred to the people at a referendum “”…” it was forced upon Sri Lanka by India in 1987. True they may not accept our point of view, but, it is important to open a window of dialogue with them. This will help to minimize any adverse action they might take against us. Note, the North East demerger did not bring us any adverse reaction from the world.  The Tamil Diaspora/TNA hold discussions with the West and India all the time, why should only we maintain silence?

We should not forget we have such true friends like China and Russia in the UN Security Council, and thirteen true friends in UNHRC in Geneva.  We should appraise them of what is happening, and seek their full assistance.  We should also cultivate more friends.

Commentators like Dr Dayan Jayatilleka have argued that the abolishment of 13A will lead to stringent Geneva Resolutions being implemented in 2014, imposition of sanctions against Sri Lanka etc. Some have predicted even a possible invasion  of Sri Lanka by India “”…” we believe the latter is very unlikely.  We should bear in mind that whether we abolish/amend the   13th amendment or not, the international community (our current “ƒ”¹…”enemies’ in Geneva etc””…” US, UK,  Canada, Norway, EU, India), due to continuous instigation by the TNA and Tamil Diaspora, will not give up its desire to carve out a separate state in North Eastern Sri Lanka for the Tamils. By holding the election now, we are simply allowing this to happen. Let us nip this new threat to our Nation in the bud, rather than allowing it to grow, like what happened with the LTTE.

In case if sanctions are imposed against Sri Lanka, or if  CHOGM is moved to another country, let us face those situation together as a Nation.  Safeguarding the country’s sovereignty and territorial integrity is paramount to all other issues, like holding CHOGM in Sri Lanka.

Let them take CHOGM to another country. The loser will be the Commonwealth, not Sri Lanka.

After the Provincial Councils are abolished, we can agree to decentralise more  power to  provinces including to North and East through  Divisional District Councils (Pradeshiya Sabhas), whose memebers are duly elected.

Chanaka Bandarage

[email protected]

26 Responses to “A REFERENDUM UNDER THE ARTICLES 80 (2) AND 85 (1) OF THE CONSTITUTION IS THE BEST WAY TO SAVE MOTHER LANKA”

  1. Lorenzo Says:

    “We should bear in mind that whether we abolish/amend the 13th amendment or not, the international community (our current ‘enemies’ in Geneva etc– US, UK, Canada, Norway, EU, India), due to continuous instigation by the TNA and Tamil Diaspora, will not give up its desire to carve out a separate state in North Eastern Sri Lanka for the Tamils.”

    100% true.

    It doesn’t change a thing!

    Just SCRAP 13 amendment without wasting time.

  2. Senevirath Says:

    SHAME ON SL. CABINET.. TRAITORS. SOME WANT 13A. SHAME SHAME

  3. Ananda-USA Says:

    Jayawewa! FINALLY … it is HERE as we had OFTEN DEMANDED …. CONTROL & OVERSIGHT of NGOs!

    Now, let us see whether the Law is ENFORCED!

    Laws UNFORCED are Laws NON-EXISTENT!

    …………………………
    Sri Lankan government clamps down on errant NGOs

    ColomboPage News Desk, Sri Lanka.

    June 13, Colombo: The Sri Lankan government has taken a series of measures to clamp down on the Non-Governmental Organizations (NGO) engaged in activities that threaten the peace and security in the country.

    Accordingly, the government has appointed a special Board of intellectuals to probe charges and allegations being made against NGOs and their operations and has made it compulsory for all NGOs operating in the country to register themselves with the Office for the Registration of Non-Governmental Organizations.

    The Government Information Department said the measures were taken to “thwart certain NGOs from hatching conspiracies to effect regime change by engaging in politics in the guise of doing social work in the country.”

    The Director General of Media Centre for National Security Lakshman Hulugalle told media that strict legal action will be taken against NGOs failing to comply with this registration rule and evict such NGOs.

    The Registration of NGOs has been brought under the purview of the Defence Ministry with effect from 2010. The registration process of NGOs is implemented under the supervision of Defence Secretary Gotabhaya Rajapaksa.

    According to Hulugalle, there are nearly 100 NGOs operating in the country currently, and a large number of them have been identified to be surreptitiously engaging in activities inimical to the state by hatching various conspiracies through opposition politicians.

    Some of the NGOs found to have evaded the registration with the Defence Ministry and instead have registered as non-profit organizations at the Department for the Registrar of Companies, the spokesman said.

    Hulugalle said that legislation has been enacted making every NGO to comply with regulations and conditions stipulated in the amended gazette notification published in 2006 after registering it with the Office for the Registration of NGOs on February 26,1999.

    Accordingly, NGOs should submit a report to the government listing its role, staff and funding and donations received from abroad, their manner of expenditure and their proposals and plans, he said. Their assets should also be registered with the relevant unit of the Central Bank of Sri Lanka.

  4. Ananda-USA Says:

    Let me put it BLUNTLY: Holding NPC elections and devolving power to the Provincial Councils will lead to an UPRISING AGAINST the Government and its TOPPLING in Sri Lanka by Patriotic Forces OPPOSED to Devolution of Power to UNREPENTANT SEPARATISTS.

    The current UPFA Government was returned to Power in the last General Elections in a LANDSLIDE VICTORY because it REUNIFIED Sri Lanka and SECURED the safety of its ALL of its citizens. The UPFA Government CONTINUES to enjoy that support even today based on that ACCOMPLISHMENT, and the VISION of transforming Sri Lanka into the New Wonder of Asia as ably articulated by President Mahinda Rajapaksa.

    However, that LOYALTY is given to by PATRIOTS only to PATRIOTIC LEADERS who continue to Defend and Protect the Nation … not to those who fail to do so because they fear PERSONAL CONSEQUENCES and DODGE their DUTY to PROTECT.

    Ultimately, it is NOT THE SURVIVAL of the LEADERS that is at stake here; it is the SURVIVAL of the NATION and its PEOPLE.

    The GOSL should HEED THE WARNING in the Cries of the Patriots: that if it Devolves Power to SEPARATISTS, it will FALL from Power just as RAPIDLY as it ROSE to Power on the Adulation of the Vast Majority of citizens of Sri Lanka.

    There is NO ISSUE of GREATER IMPORTANCE to Sri Lanka’s SURVIVAL than REPEALING the 13th Amendment and DISSOLVING the Provincial Councils, PERMANENTLY RIDDING Sri Lanka of this FOREIGN IMPOSED BALL & CHAIN that threatens to sow Civil Discord and Communal Divisions in Perpetuity!

    Instead of DISINTEGRATING the Country into a Patchwork Quilt of Racist Apartheid Fiefdoms, INTEGRATE the country into ONE Indivisible Nation, of ONE Inseparable People, sharing ONE Indomitable Destiny, based on EQUAL RIGHTS for ALL of Sri Lanka’s people, under ONE system of National Laws, irrespective of Communal Considerations!

    Sow the Wind with any other seed, and we will Reap the Whirlwind!

  5. Dilrook Says:

    I mostly agree with Chanaka.

    Election dates are not fixed as far as I know. If elections are held, TNA, THPF and TULF will win most if not all seats of the NPC. Only UPFA councilours (if any) will be from the EPDP (as the case with parliamentary elections in 2010) in the north. As such there is no hope if elections go ahead.

    13A has created a mockery of peoples’ sovereignty because it was drafted by Indians in India without regard or real knowledge of the Lankan Constitution.

    Article 154G(3) contradicts Article 4(a) of the same constitution.

    For instance Article 154G (3) – Any Bill in rgards to matters in the Provincial Council List shall become law only if they are passed by every Provincial Council – directly contradicts Article 4 (a) of the Constitution – the Sovereignty of the People shall be exercised and enjoyed by the People at a referendum.

    This is what the government plans to put to the Supreme Court for interpretation.

    It must be noted that it was a similar confusion that led to the Divi Neguma Bill ruffle that ended up with the impeachment of Shirani Bandaranayake, CJ.

    Alternatively avenues should be exploited to strike off Article 154G (3) as it interferes with the supreme right of people’s soverignty to make decisions without having to consult provincial councils.

    If Article 154G (3) stays, the current move to amend two Artcles relating to the 13A will not succeed because even such a amendment must be passed by all provincial councils. A higher interpretation more than a mere verbatim interpretation of the Constitution is needed.

  6. Chanaka B Says:

    Dilrook, Per Article 4a; there are 2 sources of power to exercise Sovereignty:

    (1) the Parliament AND (2) People at a Referendum.

    Both sources are equal.

    Currently the JNN and JHU are trying (1), which seems a futile exercise (Note, 2/3 majority is also needed).

    (2) is the best and easiest [(using 80 (2) and 85 (1)]. It is more credible – ‘People have spoken’, thus, may be more acceptable to the ‘Western Alliance’ and India.

    It is easy to ‘sell’ (2) to the World than (1).

    The President can call a referendum under Article 86, based on ‘national importance’; one may argue this needs 2/3 majority from the Parliament (depends how the Supreme Court will interpret this). So my method [(2) (using 80 (2) and 85 (1)] is the best. By that HE the President is also saved as the proposal is from the Cabinet, not by himself.

    The Government will seek opinion from the Supreme Court (presumably under Article 129 of the Constitution). The Government can ask the Supreme court to make a finding whether or not the 1987 enactment is valid (13 was passed under duress from India). The Supreme Court can say “No” and advise HE the President that the matter should be put to the people at a Referendum (the then Supreme Court stated it should be put to the people at a referendum, it is alleged JR was advised by Siva Pasupahi that a referendum was not necessary). Again, what advice the Government will seek from the Supreme Court no one knows.

  7. Chanaka B Says:

    Sorry,it should be NFF, not JNN

  8. Nimal Fernando Says:

    FINALLY! is so right — better late than never. And how sweet to know that the NGO brigade
    will be answerable, finally, to Defence Secretary Gotabhaya Rajapaksa.

    What’s that? Did I hear some clever fellow refer to NGOs thus: No Good Outsiders …!!!

  9. Dilrook Says:

    Chanaka:

    Although Article 4 (a) of the Constitution recognises correctly the sovereignty rests with the people who may exercise it either directly or through parliament, Article 154 (G) (3) contradicts it when it comes to provincial councils. This is a ridiculous contradiction resulted from Indians’ lack of knowledge of our Constitution. However, this contradiction stays as it is law now unless and until cleared through a Supreme Court interpretation or altered.
    According to Article 154, there are only 2 ways to alter the powers of provincial councils.

    If all provincial councils agree, a change can be made with a simple majority.

    However, if any one or more of PCs not agreeing, it requires a two thirds majority in parliament to do the change.
    There is no provision for a referendum in Article 154. The procedure is clearly set down. Although Article 4 (a) generally stipulates people exercise sovereignty directly (and through parliament), Article 154 has disallowed it as regards PCs.

    As at now there is no NPC. That means the second option is the only Constitutional provision available to alter the powers of PCs. It must be passed by two thirds in parliament.

    This is why NFF, JHU and even the government are following this path (through parliament). As Article 154 stands as now, there is no referendum option for this specific situation. The government has consulted legal counsel on this extensively.

    I agree with you the government lacks two thirds majority for it. I also agree a referendum is easy to sell to the international community. However, the method to alter powers of PCs is specifically laid down in the Constitution (through two thirds majority vote in parliament only).

    After doing so, the government can further curtail PC powers with a majority of PCs agreeing (7 out of 9 PCs certainly will support it) and a simple majority in parliament.

    Constitutionality of Article 154 (g) (3) as it contradicts Article (4) is another matter that may be sorted out by the Supreme Court. Constitutionality of the entire 13A is dubious in my view. I think it was Sharvananda not Siva Paupathy who was the Chief Justice at that time (1987).

  10. Dilrook Says:

    As regards total abrogation of 13A, I’m in agreement with you. However, that is not what the government is attempting at the moment.

  11. Chanaka B Says:

    True, per Article 82 (5), to repeal/amend 154G(3), a 2/3 majority is required. But, Article 82 (5) does not apply to Article 4(a) – Sovereignty of the People. See in Article 83 (a), Article 4 is expressly excluded (2/3 is not required). Therefore, using the referendum method in [80 (2) and 85 (1)]; any provision in the Constitution can be repealed/amended, including 154G(3). 2/3 is not required.

    Contrary to what the then Supreme Court (5/9) stated it is alleged Mr Pasupthi was the then Attorney General who advised JR that a referendum was not required. Yes. Sharvanandan was the CJ.

  12. Christie Says:

    We have to get rid of the provincial councils. Government should dissolve all and vhange the constitution.

  13. Christie Says:

    We have to get rid of the provincial councils. Government should dissolve all and vhange the constitution.

  14. jayasiri Says:

    I thank, Chanaka, Ananada USA & Dilrouk for educating some of us who are not familiar with Lankan constitution.

    All suggestions are very appropriate, BUT a group of lankans who love our Motherland should get together and see HE President Rajapaksh as soon as possible.

    Apart from getting rid of 13th Amendment, we have enough laws in Lanka, to round up trouble makers, leaders of North /East for disturbing the peace, involved in seperation or division of the Unitary state. It is time to punish them as they depend on our poor tax payers perks, monies, salaries to go around the world & bring misery to the Government.

    Their pronouncements, regarding sepration or division should be considered a CRIME against LANKA. These laws have NEVER been acted upon, so any fool, power hungry 4 -5% of the population thinks that with India’s help, they can FRIGHTEN Lanka again. Once our leader JRJ gave into these INDIANS & agreed to all, while our people protested & died for this cause. Our people showed Rajive Ghandi what a private soldier did to him, when Rajiv visited lanka.

    Our President should think about those people who sacrificed immensely, apart from OUR GALLANT armed forces. It is time to punsih those who continue to run to India for solutions. They get brain waive what to do, and come back with threatening language, just because they are entertained by India.

    It is time other Lankans, mainly expats to get together & present the facts to our President & promise him our support.

    Thank you…..Another retd expat expressing his views………~ May the Noble Triple Gems protect lanka~ J

  15. Ananda-USA Says:

    HERE is ANOTHER ADDLE-PATED FOOL OF A MINISTER in the GOSL Cabinet currying favor from Western Neocolonialists parroting their demands!

    He should RESIGN NOW without delay …. he does not belong in a PATRIOTIC Government committed to defending the Nation. Perhaps the Tiger Nominated Agents (TNA) can offer him a Portfolio in their Northern Provincial Council Eelam after the PC elections!

    Let us REMEMBER this man when the Eelamists take over the Northern PC and Unilaterally Proclaim a Separate State … calling for Foreign Intervention … and WAR begins ANEW in Sri Lanka!

    Begone FOOL!

    ……………………
    Sri Lanka Minister ready to resign to safeguard provincial councils

    ColomboPage News Desk, Sri Lanka.

    June 14, Colombo: Sri Lanka Minister of Fisheries and Aquatic Resources Rajitha Senaratne said that he was ready to sacrifice his cabinet portfolio to stop further reducing the powers devolved to the provinces through the 13th Amendment to the Constitution.

    Addressing a press briefing held in Colombo today, the Minister said that he would not change his position on the 13th Amendment.

    He further said that the government would be defeated before the international forces unless it fails to stop the moves to further curtail the powers of the provincial councils.

    The Minister also rejected the proposals for a referendum on the 13th Amendment to the Constitution.

    The Cabinet of ministers yesterday decided to ask the government to appoint a parliamentary select committee to study the issues regarding the amendment of the 13th Amendment since there was opposition from some cabinet ministers to diluting powers vested to PCs in the 13th Amendment.

    Constituent parties of the ruling alliance had expressed divergent views on the changes to the 13th Amendment but all were in agreement that the 13the Amendment which was formulated by India and trusted on Sri Lanka should be changed to fit to current situation after the end of the war.

  16. Dilrook Says:

    A referendum does not work to amend the powers of PCs. Only two thirds can do it.

    Neville has elaborate what I said in his writings yesterday.

    A way out of the 13th Amendment trap
    Posted on June 14th, 2013
    By Neville Ladduwahetty Courtesy Island, June 14, 2013

    [Quote]

    The procedure that needs to be followed for the amendment/repeal of any provisions of the 13th Amendment is stated in Article 154G (2). This provision requires a Bill to amend or repeal any provisions of 13th Amendment to be referred by the President “to every Provincial Council for the expression of its views thereon”. If “every Provincial Council agrees to the amendment or repeal” such a Bill could be passed with a simple majority. If on the other hand, “one or more Councils do not agree to the amendment or repeal” such a Bill needs to be passed by a 2/3 majority as required by Article 82.

    The same procedure needs to be followed in the case of a Bill in respect of any matter set out in the Provincial Council List. Since the recently passed Divi Neguma Bill was such a Bill there was no option but to follow the procedure outlined above. The bottom line is that any attempt to amend any provisions of the 13th Amendment or a Bill relating to a matter set out in the Provincial Council List needs to be passed with a 2/3 majority in the event one or more Councils do NOT agree to such a Bill.

    [unquote]

    A referendum will work to repeal 13A (the preferred option) but that is not what the government is pondering.

    All the more reasons to repeal 13A altogether than make patchwork of amendments to it. As per news reports DEW Gunasekera has assaulted Wimal Weerawansa following a heated argument over 13A yesterday. 13A has already divided the Cabinet. These differences will further dilute two thirds the government has and even destabilize the government. Such instability should be promoted as a means of pressurizing the government to go for a referendum to repeal 13A altogether.

    It is obvious the proposed dilution of 13A will fail due to lack of two thirds support. That will force the government to refer the 13A to the people in a referendum.

  17. Ananda-USA Says:

    Dilrook,

    What do you mean “A referendum does not work to amend the powers of PCs. Only two thirds can do it.”?

    That is the EXACT OPPOSITE of what Neville Laduahetty said in his article! I agree with Neville’s assessment.

    Perhaps you made a mistake, and really meant to say that a Referendum can overcome the 2/3 vote in Parliament to REPEAL the 13th Amendment?

    I quote from Neville Laduahetty’s article:

    Quotations:

    This makes the 13th Amendment a fetter to progress, and a trap from which the only escape is to repeal it altogether.
    ……….
    Under these limiting circumstances, the ONLY option is for the People to be given the opportunity to decide acceptance or rejection of the 13th Amendment by means of a Referendum.
    ……….
    “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”.
    ……….
    The options open are either to tinker with the 13th Amendment and attempt to introduce amendments or to repeal it outright. The hard truth that needs to be realized is that the first option is totally dependent on the ability of Governments to muster a 2/3 majority, no matter how progressive the amendment. Considering the fact that only three Governments have enjoyed 2/3 majorities since independence, dependence on this reality makes this option a fetter to progress.

    The second option of repealing the entirety of the 13th Amendment cannot be initiated by the People however convinced they may be of its need. It is only the President who is authorized to initiate the call for a referendum.

    This article proposes a procedure that could justifiably be adopted by the President for such an initiative. Considering the growing opposition to the 13th Amendment, it should serve as sufficient compulsion for the President to initiate the call for a Referendum and give the People the opportunity to decide how they are to be governed; a right denied to them by the very organs of Government that were supposed to include and define the People’s sovereignty.

  18. Dilrook Says:

    Ananda-USA:

    There are 2 different issues here.

    1. Reducing the powers of PCs.
    2. Repealing 13A

    For repealing 13A a referendum is the best option.

    For reducing the powers of PCs, the Constitution clearly specifies the approach (emphasized) to be taken. I quote from Neville who in turns quotes from the Constitution.

    [Quote]

    The procedure that needs to be followed for the amendment/repeal of any provisions of the 13th Amendment is stated in Article 154G (2). This provision requires a Bill to amend or repeal any provisions of 13th Amendment to be referred by the President “to every Provincial Council for the expression of its views thereon”. If “every Provincial Council agrees to the amendment or repeal” such a Bill could be passed with a simple majority. If on the other hand, “one or more Councils do not agree to the amendment or repeal” such a Bill needs to be passed by a 2/3 majority as required by Article 82.

    The same procedure needs to be followed in the case of a Bill in respect of any matter set out in the Provincial Council List. Since the recently passed Divi Neguma Bill was such a Bill there was no option but to follow the procedure outlined above.

    Emphasised (emphasis mine)

    The bottom line is that any attempt to amend any provisions of the 13th Amendment or a Bill relating to a matter set out in the Provincial Council List needs to be passed with a 2/3 majority in the event one or more Councils do NOT agree to such a Bill.

    [unquote]

  19. Lorenzo Says:

    What’s the point in keeping this dirt?

    Just scrap it WHATEVER WAY that works. It was not legitimately imposed! So why we have to be perfect to SCRAP it?

    This has been POSTPONED for too long now.

    May be nationalist groups must get together and start a CURSE CAMPAIGN to get the Rajapakshas moving to SCRAP this. Govt. won’t care two hoots if traitors does it. But govt. will be shaken if nationalists start doing it.

  20. Fran Diaz Says:

    At this point in time, it appears to be pointless to merely make alterations to the 13-A just to make it seem safe for the time being. In the near future, if not the TNA, new Tamil organisations will demand additions to the 13-A to suit the Separatist agenda.

    The aim now should be REMOVE the 13-A altogether. The laws governing the 13-A appear very convoluted and confusing.
    It has too much ambiguity. It will further confuse the People of Lanka and may lead to violence due to confusion and sheer frustration. Continuing with the 13-A may lead to new Separatist activities leading to the bifurcation (or trifurcation) of Lanka.

    The President has to now initiate the proceedings via the Supreme Court that a Referendum be held involving all the People of Lanka, whether to remove the 13-A or not. Mr President, virtually the whole of Lanka is with you. Please rescue Sri Lanka once more. Our prayers are with you to once more bring about a feeling of security, peace & prosperity for all.

    How did a small country like Lanka manage without any PCs etc. in the past ? We do not need PCs. What we need is to empower all people at grass roots level with grass roots organisations connected to government via able SLAS officers.

    Keep the process of governance simple and easy to understand for the common people of Lanka. That is the winning way.

  21. Ananda-USA Says:

    Indeed, as Neville Laduahetty says, “Thus the interests of the People are at variance with the interests of the Councillors. ”

    But, we must ALSO ask “Which People”? ALL of the citizens of the whole of Sri Lanka, or ONLY the residents of ONE OR MORE Provinces?

    Therein lies the DANGER. If for example, “the People” of a particular Province, for whatever reason, want to secede from union with Sri Lanka, then will they have, or can they acquire, the Legal Power to do it using the powers devolved under the 13th Amendment? Even if there is no difference in opinion between “the People” of that province and “the Provincial Councillors” of that province, it could very well happen that the People of the Other Provinces, and/or their Provincial Councillors, may disagree with the steps contemplated by the Province in question.

    That is why Sri Lanka should NEVER RECOGNIZE of ANY SUB-NATIONAL GROUP of Sri Lankans, defined on ANY BASIS such as regional, ethnic, religious, or whatever, as having Sovereignty, or the Power to decide on whether to remain a part of Sri Lanka, or to act independently of the Sri Lankan Nation State.

    ONLY the ENTIRE PEOPLE of Sri Lanka, expressing their views through NATIONWIDE ELECTIONS and REFERENDA, should be recognized as being SOVEREIGN, and be RECOGNIZED as having the Legal Power to decide on such matters.

    That is why Land and Police Powers are so critica to maintaining the Sovereignty of ALL PEOPLE of Sri Lankal. Without Land Powers the Nation State has no control over its territory, and without Police Powers it will have no authority or the means to enforce the Land Powers, which more generally can be taken to include immigration/emigration as well.

    Recall that during the period from March 15, 1815 to February 4, 1948, MILLIONS of Indian laborers were imported into Sri Lanka by the British, ignoring the protests of the native people of Sri Lanka, PERMANENTLY AFFECTING their RIGHTS and DISPOSSESSING them. That is the PRICE Sri Lankans paid for having lost our Sovereignty and Control over our country for 150 years. We should LEARN well that LESSON of the CONSEQUENCES of losing Land and Police Powers to foreign powers or internal groups, who have agendas inimical to the continued existence and sovereignty of our nation.

    FORTUNATELY, there is an Internationally Recognized LEGAL PRINCIPLE and a CLEAR LEGAL PRECEDENT for a National Government to claim the Sovereignty of ALL PEOPLE of a country over ALL of its territory, and enforce its authority even over sub-groups of states and people residing in those territories: The United States of America in the US Civil War:

    The Southern (Confederate) States of the USA argued that since they had joined the American Union voluntarily, and since they had reserved States Rights to themselves under the US Constitution at that time, they had every right to SECEDE from the Union if they so decided, WITHOUT REGARD to wishes of THE PEOPLE OF THE NATION AS A WHOLE.

    Not so, argued President Abraham Lincoln and the Union (Federal) States. They maintained that ONLY the ALL of PEOPLE of the Nation were Sovereign, not the States, not the People of a SUB-GROUP of those States.

    The argument was that ALL OF THE PEOPLE of THE United States had ACQUIRED A RIGHT TO ENJOY THE BOUNTY of the ENTIRE TERRITORY OF THE UNITED STATES ACCUMULATED during the Previous 100 Years of Union as ONE NATION STATE. ALL of the People of the US had invested their efforts, their treasure, and their hopes in building that Union of States, argued the Unionists, and no SUB-GROUP of States had the right ANYMORE to DENY them those ACCUMULATED EARNED RIGHTS, which are now INALIENABLE.

    Well, Sri Lanka has certainly existed as a well-recognized Sovereign Nation-State for several thousand years, with brief interruptions due to invasions, and ALL OF ITS PEOPLE, from then until now, have invested their efforts, their treasure, and their hopes in an Undivided Sovereign Sri Lanka. That is a RIGHT EARNED and PASSED ONTO to subsequent generations of Sri Lankan Citizens over several millenia, which TRUMPS the RIGHT EARNED by ALL of the citizens of the United States, over a mere 100 years of existence as one nation from the American Revolution to the American Civil War, to CONTINUED EXISTENCE as a ONE undivided Nation.

    This EXAMPLE of ONLY ALL OFF THE PEOPLE of a Nation State being Sovereign, and that this Sovereignty is EARNED RIGHT BY ALL OF THE PEOPLE to ALL OF THE TERRITORY OF A NATION, is IMPORTANT to Sri Lanka for TWO reasons:

    1. It FORMS a BASIS for asserting that the WILL OF ALL CITIZENS OF Sri Lanka has PRIORITY/PRECEDENCE over the WILL OF ANY SEPARATIST SUB-GROUP of People in Sri Lanka. Therefore, any National Question, such as REPEALING the 13th Amendment and the DISSOLUTION of the Provincial Councils, must be decided in a NATIONWIDE REFERENDUM that queries the wishes of ALL PEOPLE of Sri Lanka. Furthermore, the WILL of ALL of Sri Lanka, thus expressed, is PARAMOUNT, and has precedence over the WILL of its Representatives elected to ANY and ALL branches (the Executive, the Legislature and the Judiciary) of Government.

    2. This Legal Principle is well established in the United States, forming as it did the very legal basis on which the Civil War against the Separatist Confederates, was fought and won, and the writ of the Union Government was consolidated over the ENTIRE United States, and subsequently extended to new territories that joined, or were annexed, into the United States. Yet, the United States is one of the foremost critics of Sri Lanka that demands Devolution of Power to ACTIVE separatists, who threaten its very existence as a Sovereign Nation, and refuse to abide by its unitary status. That is CLEARLY CONTRARY to the Principles the United States used in the past, and uses today, to assure its own existence as a United Sovereign Nation.

    Therefore, this Principle can be USED to FEND off ALL of the Foreign Critics of Sri Lanka who demand that autonomous power be devolved to former and continuing separatists by pointing out the HYPOCRISY, DOUBLE STANDARDS, ILLEGALITY under their own laws, of their positions on this issue. We can INVOKE the same principle they used to defend and protect thier own countries, to defend and protect Sri Lanka’s Sovereignty over ALL of its territory, and ALL of its people.

    What is GOOD for the American GOOSE, we must INSIST, is GOOD for the Sri Lankan GANDER as well!

  22. Ananda-USA Says:

    Gotabhaya’s Comment is RIGHT ON THE MONEY: India’s INTERFERENCE continues to FOMENT internal communal conflicts in Sri Lanka, generate external threats from Tamil Nadu, and Western Neocolonialist powers plying their own agendas, and exacerbate the threat from the Sri Lankan Eelamist Tamil Diaspora.

    I ONLY WISH Gota was able to convince his brother, the President, to SCRAP the 13th Amendment, for the 13A will trigger another civil conflict in Sri Lanka in the not-too-distant future.

    It is THe HEIGHT OF HYPOCRISY for India, which INITIATED & ORCHESTRATED the Tamil separatist murder and mayhem in Sri Lanka, to CLAIM it is doing ANYTHING to help Sri Lanka when it FORCES the 13A down Sri Lanka’s unwilling throat. OUR CLOSEST COUSINS are now OUR WORST ENEMIES, as they PERSIST in undermining and destabilizing Sri Lanka!

    My warning to Indians: “You live in a Glass House, it is Dangerous to Throw Stones at Neighbors!”

    ………………………….
    Gotabaya worried over Jaya’s stand on Lanka

    By P K Balachandran
    NewIndianExpress.com
    June 15, 2013

    “Given the recent activities of LTTE-linked organisations outside Sri Lanka, particularly in Tamil Nadu, this is very much a current threat”, said Gotabaya Rajapaksa

    Chief Minister J Jayalalithaa’s firm stand on Sri Lanka has upset the island nation’s government with Defence Secretary Gotabaya Rajapaksa saying her point of view poses a threat to his country’s security and sovereignty.

    Speaking at the Kotelawala Defence University here, Gotabaya said: “India, in particular, is very sensitive to what is going on in Sri Lanka because of the large Tamil population in its influential southern State of Tamil Nadu. Especially during election cycle, Sri Lanka figures large in its power politics. In the recent past, we have seen even the Chief Minister of Tamil Nadu attempting to pressurise the Central government into opposing Lanka internationally. This is a serious threat to Sri Lanka’s security and perhaps even to its sovereignty.”

    The Defence Secretary said there were some Tamils in Lanka who identified themselves more with Tamils in Tamil Nadu than with fellow Lankans and that it was being encouraged by “some parties overseas” who wished to promote the idea of a “greater Tamil nation”.

    On the possibility of arms smuggling across the seas, he said: “Given the recent activities of LTTE-linked organisations outside Sri Lanka, particularly in Tamil Nadu, this is very much a current threat.”

    Stressing the need to prevent Tamil Nadu fishermen from entering Lankan waters, he said: “The fishing boats that enter Lankan waters illegally have also been known to engage in criminal activities including drug smuggling.”

    India-China conflict

    Gotabaya saw the India-China conflict as a threat to Lanka. “With the rise of China as a world economic leader, there is widespread belief that India feels insecure and is seeking to align itself with other powers that seem similarly threatened by China’s ascendency. The likelihood of the US showing more interest in the region and aligning more with India is a factor that might affect Lanka. Its establishment of a base in the Maldives is also changing the complexion of the region,” he said.

  23. Kosala777 Says:

    As usual Dilrook has picked on a fellow patriot. Go and attack TNA Dilrook rather than attacking good people all the time.

  24. Lorenzo Says:

    Ananda,

    Thanks for that information. Endia (Tamil Madu is part of it) is SL’s enemy #1.

    ONLY GR seems to have some sense of what is happening.

    Kosala777,

    I disagree. He is a top patriot though what he says is DISAPPOINTING to hear (which may be the LEGAL truth).

    My point is to HELL WITH LEGAL constraints because 13 amendment was ILLEGALLY IMPOSED. Why should we have to respect and follow 13 amendment if we are going to SCRAP it?

  25. Ananda-USA Says:

    Kosala777,

    No, No, Dilrook was not attacking me; he was very kindly explaining, at my own request, what exactly he had meant by what he wrote.

    Judging from Dilrook’s explanation …. he and I agree that 1. a Bill presented to Parliament to change the 13th Amendment requires passage by at least 2/3 majority, and that 2. a nationwide referendum to repeal the 13th Amendment circumvents the barrier presented by the 2/3 majority vote in Parliament , albeit requiring the President to initiate the nationwide referendum.

    It was merely the wording of his original statement that was confusing to me.

    IN PASSING, I want to add here that ALL the Voters of Sri Lanka acting through a NATIONWIDE REFERENDUM not only have the power to completely approve, or completely repeal, the 13th Amendment without attempting to modify it in any way, but they also have the power to revise/modify the 13th Amendment partially in any way.

    IT ALL DEPENDS ON THE EXACT WORDING of the text of the NATIONWIDE REFERENDUM put to the voters.

  26. Dilrook Says:

    I agree with Ananda that it all depends on the exact wording of the text of the referendum question.

    Last year a large group of concerned Sri Lankan expatriates wrote to the President on the very same subject after extensive discussions among them. Needless to say there was a very live and long debate on the exact wording of the potential referendum question.

    In the event of a referendum, it must be asked in no uncertain terms the willingness or otherwise of the voter to repeal 13A to the Constitution. With 82 years of voting experience, Sri Lankan voters know best how to respond to a clear question. They are well capable of governance which was why the British colonists granted us universal adult franchise before any other colony. Continuation with 13A is an insult.

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