A way out of the 13th Amendment trap
Posted on June 14th, 2013
By Neville Ladduwahetty Courtesy Island
June 14, 2013, 8:19 pm
Several prominent civil society members are opposing attempts of the Government to introduce revisions to the 13th Amendment. The issue is not whether there is merit or not in the contemplated revisions. The issue is that the constitutional procedures that need to be followed in the case of a Bill to amend/repeal provisions to the 13th Amendment or any matter set out in the Provincial Council List, makes progressive revisions a daunting undertaking. This makes the 13th Amendment a fetter to progress, and a trap from which the only escape is to repeal it altogether.
For instance, there is popular consensus of the need to devolve power beyond the Provincial Councils to grass roots levels. Under current provision this task is left to the discretion of each Provincial Council. Since this is bound to create asymmetries in the powers devolved to grass roots levels among the provinces there is a need for uniformity of the devolved powers among the provinces. Such uniformity is possible only if it is constitutionally entrenched by means of an amendment to the current provisions of the 13th Amendment. However, approval even for such a progressive measure is made difficult due to the strenuous procedure of requiring a 2/3 majority to effect a revision. Thus, the 13th Amendment presents a fetter to progress.
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.
HISTORY OF the 13th AMENDMENT BILL
The original Bill to amend the Constitution (13th Amendment & Provincial Council Bills), submitted to the Supreme Court in 1987 to determine whether the 13th Amendment Bill required “approval by the People at a Referendum” by Article 120 of the Constitution, contained the requirement of a 2/3 majority of Parliament and a referendum by the People in the event one or more Councils did NOT agree to the provisions in the Bill. Since the Supreme Court did NOT make a unified determination as a Court and forwarded 3 separate determinations (4 judges requiring a referendum; 4 judges NOT requiring a referendum; 1 judge determining that provisions of 154G (2) (b) and (3) (b) “require approval by the People at a Referendum”), Parliament took upon itself the drastic step of arbitrarily deleting the requirement of a referendum, and retained only the requirement of a 2/3 majority in the event one or more Councils did NOT agree to a Bill.
Even though it could be argued that Parliamentary action made it less restrictive to amend provisions in the 13th Amendment, the fact remains that what the Parliament did amounted to a revision of the original Bill that had made the People an integral part of the Legislative processes. Thus, it was obligatory on the part of the Government to have resubmitted the revised version to the Supreme Court, for the latter to determine whether this revised version required approval by the People at a Referendum. Had they done so, there is a strong possibility the Supreme Court may have determined that a Referendum was needed. To determine otherwise would have been to exclude the peopleƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s participation in Legislative processes; a fact recognized in Article 4 which states that Legislative powers shall be exercised by the elected representatives “and by the People at a Referendum”.
CONSEQUENCES of PARLIAMENTARY ACTION
The possibility of “one or more Councils” NOT agreeing to a Bill is real. Another real possibility is that a majority of the Councils (5 out of 9 may NOT agree to a Bill. This could very well be the case with attempts to devolve powers from the Provincial Councils to grass roots levels, since the Councils would perceive such attempts as efforts to dilute the powers of the Councils. This would induce a majority of the Councils to oppose attempts to devolve power to grass roots levels. Thus the interests of the People are at variance with the interests of the Councilors. Similarly, the interests of the People and the Provincial Councilors would be at variance in the case with Police and Land Powers. In this instance, while it is unlikely that the People would want the Provincial Councilors to have jurisdiction over Police and Land Powers as specified in the 13th Amendment, the Councilors would want to exercise powers pertaining to both, thereby causing a majority of the Councils to oppose attempts to withdraw Police and Land Powers.
Under any of these circumstances Parliament could still pass Bills in complete disregard to the wishes of the Provincial Councils and even the People, provided the Government in question could garner a 2/3 majority in Parliament. Since opportunities for Governments to muster 2/3 majorities is rare, and attempts to introduce amendments however progressive are totally dependent on the abilities of Governments to secure the needed 2/3 majority. The difficulties of securing 2/3 majorities are reported to be a problem even for the present Government. Consequently, the 13th Amendment as presently constituted is a fetter to progress.
CORRECTIVE PROCEDURE
Under the circumstances, not to repeal the entirety of the 13th Amendment is to live under the restrictive procedures provided for in the 13th Amendment without opportunities to introduce progressive Bills that would improve governance and the PeopleƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s lives. These difficulties are increasingly being realized by parties attempting to bring about amendments to existing provisions such as withdrawing Police and Land Powers. The primary source is the inability to muster a 2/3 majority to effect the contemplated amendments. Such majorities are hard to come by and have been enjoyed only by three Governments since independence.
The issue is what legitimate remedial procedures are available to escape from this trap. Even though it could be established that the procedures followed to pass the 13th Amendment were illegal, Article 80 (3) denies anyone from questioning the validity of a Bill once it is certified. 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 event the People reject the 13th Amendment the question that remains to be answered is whether such an outcome could prevail over the approval given by the Parliament in 1987.
The answer lies in the interpretation of Article 3. This Article states:
“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”.
Since government is part of the PeopleƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s sovereignty, it must follow that the organs of government must be subordinate to the People. It then must follow that it should be possible for the People to either support or reject a decision made by one of the organs of the government such as Parliament. In this particular instance, it would then be legitimate for the People to reject the 13th Amendment through the mechanism of a Referendum and override the ruling of the 1987 Parliament.
Since such a Referendum can only be initiated by the President, a proposal was submitted in a letter to the President dated March 8, 2010. This letter brought to the attention of the President the unconstitutional and unlawful procedures associated with the passage of the 13th Amendment and suggested that the President consult the Supreme Court under Article 129 and request the Court to review the circumstances associated with the passage of the 13th Amendment, since it is “question of law or fact”, and to report to the President its opinion thereon. Such a determination and report by the Supreme Court should be conducted publicly in order to expose the illegality of the procedures on which the 13th Amendment was founded. Since the facts would establish that the procedures adopted were in fact illegal, it would give the President the moral justification to authorize the conduct of a referendum either on grounds of the unlawful circumstances associated with the passage of the 13th Amendment or by invoking provisions of Article 86 since it is an issue of “national importance”. Either way, there are grounds for the President to authorize a Referendum to establish the views of the People regarding acceptance or rejection of the 13th Amendment.
CONCLUSION
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 PeopleƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s sovereignty.
The question has been raised as to whether a Referendum can override approval given by the Parliament. The answer depends on how Article 3 is interpreted. Since this Article clearly enunciates that the Sovereignty of the People “includes powers of government”, it must follow that organs of that government such as Parliament that exercise “legislative powers” must be subordinate to the decisions by a Sovereign People. Therefore, it could be justifiably concluded that a determination by the People through a Referendum must prevail over the decision by a Parliament. This matter too could be cleared by the Supreme Court during the consultative process initiated by the President concerning a Referendum.
It is apparent from the foregoing that the consolidation of peace is in the hands of the President just as it was in securing the peace. What he did with securing peace and what he does with consolidating the peace would be his legacy to the nation.
June 14th, 2013 at 3:33 pm
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!
June 14th, 2013 at 4:12 pm
Very well said.
It is all in the hands of the president.
He must put the damned 13 amendment to the people. Let the PEOPLE decide. After that Endia can blame the people.
We want the WHOLE 13 AMENDMENT CHUCKED.
We don’t want SMALL CHANGES to it and keeping the rest of the dirt.
Why are all these losers scared of the people? Just put it to the people and let them decide.
June 14th, 2013 at 4:31 pm
MAHINDA KNOWS THAT PEOPLE WILL VOTE AND SAY TO SRAP 13A .THAT IS WHY HE DOESNOT WANT A REFERENDUM HE IS SCARED OF INDIA AND OTHERS AND WANT TO PLEASE THEM TO BE IN POWER
”janathavata hena gehunath unta kamak nehe’
RAJITHALA LANGATA GANNE DROHIYO
June 14th, 2013 at 4:36 pm
Yes that is the reason Senevirath.
People should put pressure on him and PULL HIM TOWARDS THE OTHER DIRECTION.
June 14th, 2013 at 5:12 pm
This is a time for the President to address his gut feelings and find out whether he is for the dismemberment of Sri Lanka or not. This is not a time to play politics or pacify India temporarily for the detriment of the Sri Lankan nation. What is of importance is not the static fact but the dynamics of that action later. not x but dx/dt! How things will develop after the powers are given – what direction it will take and how fast.
There is nothing that we don’t know of this outcome. The Racist Tamils will immediately embark on calling for outside assistance by passing Colombo and the President will be left like the proverbial cat that crapped on a hard rock!
This will be the beginning of the final phase of the Eelam War. This time major powers will directly intervene with funds and armaments, just as they are doing in Syria now. They need no rhyme or reason for their actions. They went to Iraq in the trumped up excuse of Weapons of Mass Destruction; now they are going to send arms on the trumped up charge of the use of Sarin Gas by the Syrian government. What is in store for Sri Lanka is unimaginable if the provisions of the 13th Amendment are fully implemented.
Time has come for Sri Lanka to be assertive and take actions that are best for the nation. We must strengthen our armed forces – introduce compulsory national training for the youth and move forward like a nation with a spine. Our nation has suffered for 30 years under the jack boots of Racist Tamil Tiger Terrorism. Our people must say loudly Never Again. This can only happen at a Referendum and not any action by the wiggly snakes in the parliament who are ever ready to sell their mothers to gain a few dollars, retain their portfolios and enrich their families and friends.
June 14th, 2013 at 5:26 pm
SENEVIRATH AND LORENZO, GREAT MINDS CONCUR. NOTHING BUT THE TRUTH.
Yes, it appears that President has got an Indian Peritonitis Rigor. Shaking heavily with high Indian fever.
June 14th, 2013 at 6:05 pm
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 telling 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.
June 14th, 2013 at 7:34 pm
Bravo Ratnapala, Bravo! Could not have said it better myself!
June 14th, 2013 at 7:51 pm
Mahinda is going to ruin himself and the country by allowing marxists to assault patriots . all these marxists who support 13 a and unp rajitha gang are trying to make mahinda un popular to bring back u.n.p into power. Rajitha and others will go back in the near future
keeping these people in the govt and giving powers to them is like ”NAYINTA KIRI PEVIMAK””
GO FOR A REFERENDUM. IT IS THE ONLY SOLUTION . LET THE PEOPLE DECIDE THEN MAHINDA WILL BE SAFE AND THE COUNTRY WILL BE SAFE
PUT THESE FEW MARXISTS IN A THREE WHEELER AND SEND THEM AWAY — ONE THREE WHEELER IS ENOUGH FOR ALL OF THEM
RAJAPAKSES WILL BE IN POWER FOR ANOTHER 100 YEARS IF MAHINDA TAKE THE RIGHT DECISION AND GO FOR A REFERENDUM. EVEN IF HE PLEASE INDIA AND WESTERNERS NOW THEY WILL LATER TAKE THE REVENGE FOR KILLING PRABHA
June 14th, 2013 at 8:42 pm
Indeed, as Neville Laduahetty says, “Thus the interests of the People are at variance with the interests of the Councilors. ”
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 the Legal Power to do it? Even if there is no difference in opinion between “the People” of that Province and “the Provincial Councillors” of that province, it could 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, speaking 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 critical; without Land Powers the Nation State has no control over its territory; 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 of March 15, 1815 and 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, 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 that LESSON well.
There is a PRECEDENT for a National Government successfully claiming and enforcing its authority even over semi-autonomous states: The United States of America in the US Civil War:
The Southern (Confederate) States argued that since they had joined the American Union voluntarily, and since they had reserved States Rights to themselves under the US Constitution, they had every right to secede from the Union if they so choose, WITHOUT REGARD to what THE PEOPLE OF THE NATION AS A WHOLE thought of it.
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, nor the People of ONE or MORE States. The argument was that ALL OF THE PEOPLE of THE United States had ACQUIRED AN ACCRUED RIGHT TO ENJOY THE BOUNTY of the ENTIRE TERRITORY OF THE UNITED STATES during the Previous 100 Years of Union as ONE NATION STATE. ALL of the People of the US had invested in their efforts, treasure and their hopes in building that Union of States, argued the Unionists, and no ONE or MORE States had the right ANYMORE to DENY them those ACCUMULATED EARNED RIGHTS.
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 have invested their efforts, treasure and hopes in a an Undivided Sovereign Sri Lanka. That is a RIGHT EARNED over several millenia which TRUMPS the RIGHT of EARNED by ALL of the citizens of the United States, over a mere 100 years from the American Revolution to the American Civil War, to an undivided Nation.
This EXAMPLE of the People being Sovereign, and that that Sovereignty is EARNED RIGHT BY ALL OF THE PEOPLE to ALL OF THE TERRITORY OF A NATION is IMPORTANT for TWO REASONS:
1. It FORMS the BASIS for asserting that the WILL OF ALL CITIZENS OF Sri Lanka TRUMPS the WILL OF ANY SEPARATIST GROUP of People in Sri Lanka. Therefore, any National Question, such as that of 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.
2. This Legal Principle is well established in the United States, one of the foremost critics of Sri Lanka that demands Devolution of Power to active separatists, forming as it had the very legal basis on which the Civil War against the Separatist Confederates, was fought, won and the writ of the Union Government consolidated over the ENTIRE United States, and subsequently, in territories that joined, or were annexed, into the United States.
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 …. who even oppose the unitary status of Sri Lanka … by pointing out the HYPOCRISY and DOUBLE STANDARDS underlying their position.
What is GOOD for the American GOOSE, we must INSIST, is GOOD for the Sri Lankan GANDER as well!
June 15th, 2013 at 6:55 am
Latest bit of ‘wool over eyes’ comes from the LSSP :
“LSSP: 13A ‘very weak’ as it is, so why panic?
June 14, 2013, 9:47 pm – Island
by Zacki Jabbar
The LSSP said yesterday that there was an undue haste to dilute the 13th Amendment to the Constitution, but it was ‘very weak’ as it was, since none of the powers that mattered such as land and police had been granted.
LSSP leader, Technology and Research Minister, Tissa Vitharana told The Island that a lot of hot air had been expended over nothing, since the President had the final say in all matters including policy issues.
Even if the Tamil National Alliance (TNA) won the Northern Provincial Council Election (NPCE) it could not exercise land and police powers without it being implemented through the required legal channels, he noted.Asked what the LSSP’s view was on an urgent Bill to abolish the power of Provincial Councils to merge into one unit, which was to be presented to Parliament next week, the Minister said that they had requested President Mahinda Rajapaksa to hold the NPC polls under the existing law.
Whatever amendments to the 13A, could be presented to the legislature after the polls were over, Vitharana said, adding that the people’s representatives could take a decision at that stage.
The Minister observed that if the Northern Provincial Council was stripped of its more important powers, even though it was still confined to the law books, prior to the Councils first democratic election, the Tamil people could say that the same treatment had not been meted out to the other provinces.
The Northerners, who had undergone enough suffering over the last three decades, should be left in peace to exercise their franchise at a free and fair election without creating unnecessary issues and confrontations, the minister observed”.
June 15th, 2013 at 6:59 am
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.
June 15th, 2013 at 11:23 am
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!
June 15th, 2013 at 11:33 am
“Vox Populi Vox Dei” or “The voice of the people is the voice of God”. It is not to be taken literally but to emphasis the power of the people and the majority of Sri Lanka want the Indian drafted 13th amendment removed and I would add that once removed a new amendment be put in its place that places the power to the center and places the integrity and security of the nation above all else.
June 15th, 2013 at 11:52 am
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.
June 16th, 2013 at 7:00 am
If india has to listen its tamils sri lanka has to listen to sinhala majority… SIMPLE……
if mahinda betray sinhalese that will be the end of rajapakse family……
gota it is your turn to convince mahinda
June 17th, 2013 at 2:37 pm
Patriots are caught between the DEVIL and the DEEP BLUE SEA:
1. The DEVIL: If the JHU stays in the GOSL …. NPC elections may go ahead without the 13A being REPEALED or SIGNIFICANTLY modified to protect the Nation.
2. THE DEEP BLUE SEA: If the JHU withdraws from the GOSL, the SLMC and other Anti-National Elements now straddling the fence within the UPFA may withdraw too, if that would BRING DOWN the UPFA GOSL. That would be disastrous and lead to the UNP cheered on by its Anti-National allies taking over the GOSL, and IMMEDIATELY GIFTING the Northern and Eastern Provinces to the Eelamists!
I am PUZZLED why our Patriotic President has STILL NOT DONE THE RIGHT THING and called for a simple UP or DOWN vote in a NATIONWIDE REFERENDUM to REPEAL the 13th Amendment. That seems to be the most OBVIOUS & SAFEST route to take.
Does he have DEMOGRAPHIC DATA that shows beyond reasonable doubt that such a NATIONWIDE REFERENDUM to REPEAL the 13th Amendment may LOSE? I VERY MUCH DOUBT THAT WOULD HAPPEN!
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Coalition party of Sri Lankan government warns of outcome of Northern PC election
ColomboPage News Desk, Sri Lanka.
June 17, Colombo: The Sinhala Buddhist coalition party of the Sri Lankan government Jathika Hela Urumaya (JHU) today warned of a possible outcome detrimental to the country’s unity from the Northern Provincial Council election.
Layman leader of JHU, Minister Patali Champika Ranawaka said that all who were loyal to the 13th Amendment to the Constitution would be answerable to the situation that might arise in case the Northern Provincial Council election is held without amending the Constitution.
Addressing a press conference, he said that the Tamil separatists might use this election as a referendum for their cause.
Ranawaka focused his argument on police and land powers vested in the Provincial Councils.
However, he declined to comment the actions the JHU would take if the Northern Provincial Council election is held without amending the Constitution.
When a journalist inquired if the JHU would withdraw the support to the government, Minister Ranawaka said in a subdued tone that political context could change at any moment.
Meanwhile, the Western Provincial Council JHU Minister Udaya Gammanpila challenged Minister Rajitha Senaratne for a debate in regard of the police and land powers of Provincial Councils. He said that he would prove the danger of granting land and police powers to the Provincial Councils.
June 17th, 2013 at 6:35 pm
“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”.”
GOTA is the man!
BTW never forget Tamils in Lanka are BLOOD RELATIVES of the Tamil Diaspora. Unless a Tamil stands OUT of this Tamil racism madness and aligns with UNITARY SL (with Buddhism having the SUPREME place in the country) he too is one of them.
The ball is in the court of Tamils to prove,
1. They are not Tamil nationalists/racists
2. They UPHOLD UNITARY SL (NOT united SL).
3. They UPHOLD Buddhism having the SUPREME place in the country as per the constitution.
IF anyone can’t do so, I’m afraid it is better for them to TAKE THE BOAT to Australia.
Govt. should ENCOURAGE them to GO (to hell) in a boat bound for Australia.
June 18th, 2013 at 1:35 pm
A Petition to STRIP LAND & POLICE POWERS from the PCS is GOOD, but a Petition to STRIP the 13th Amendment from Sri Lanka’s Constitution is ESSENTIAL & MUCH BETTER!
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Petition with million signatures to strip land and police powers to PCs handed over to Sri Lankan President
ColomboPage News Desk, Sri Lanka.
June 18, Colombo: A petition with signatures of million people against holding the Northern Provincial Council election without amending the land and police powers was handed over to the Sri Lankan President today.
The National Freedom Front led by Minister Wimal Weerawansa earlier this month launched an island wide campaign to collect million signatures against vesting land and police powers to the provincial councils under the 13th Amendment to the Constitution.
The campaign began in Anuradhapura on June 6th and traversed the country collecting signatures.
Minister Wimal Weerawansa, Deputy Minister Weerakumara Dissanayake, Politburo Member Piyasiri Wijenayake and other members of the NFF were present at the occasion.
(Photos by Sudath Silva)
June 18th, 2013 at 1:45 pm
PATRIOTS! …. HERE it is …..JHU’s PETITION to REPEAL the 13th Amendment!
Jayawewa!
Ratna Deepa, Janma Bhumi
Lanka Deepa, Vijaya Bhumi
Mey Apey, Udaarawu
Maathru Bhumi-yayi
Maathru Bhumi-yayi …….
Aadi Sinhaley Aey Weera Meemathun Layin
Saarawu, Udaarawu
Maathru Bhumi-yayi
Maathru Bhumi-yayi …….
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Sri Lanka Buddhist party reveals its constitutional amendment
Thu, May 23, 2013, 01:04 am SL Time, ColomboPage News Desk, Sri Lanka.
May 22, Colombo: Sri Lanka’s Sinhala Buddhist political party Jathika Hela Urumaya (JHU) Wednesday revealed the 19th Amendment to the Constitution proposed by them.
Legal adviser of JHU Udaya Gammanpila, Member of Western Provincial Council, briefed the content of the proposition today at a press conference held in Colombo.
JHU Gampaha district MP Ven. Athuraliye Rathana Thero said the party expects to bring in the proposal to the parliament as a private member’s motion.
Full Text of the Amendment:
The proposition named as An Act to amend the Constitution of the Democratic Socialist Republic of Sri Lanka aims primarily to repeal the 13th amendment to the constitution which paved way for the power devolving Provincial Council system in the island.
Full text of the draft constitutional amendment is as follows: Whereas the 13th Amendment to the Constitution was purportedly enacted, consequent to the Indo- Sri Lanka Accord being entered into between the President of Sri Lanka and the Prime Minister of India in 1987 under duress in defiance of the sovereignty of the people of Sri Lanka and,
Whereas the Supreme Court of the Democratic Socialist Republic of Sri Lanka did not approve the provisions of the 13th amendment Bill as being consistent with the Constitution in as much as only four judges of the Supreme Court out of nine held that the approval of the people at a referendum was not required to enact the 13th Amendment whilst five judges held that at least one or more of the provisions of the Bill was in violation of the Constitution and therefore required the approval of the people at a referendum and,
Whereas in terms of Article 80(2) of the Constitution “where the Supreme Court has determined that a Bill or any provision thereof requires the approval of the people at a referendum” such bill or such provision shall become law only upon the same being approved by the people at a referendum and the President certifies that the Bill or any Provision thereof has been so approved in the manner as set out in the said Article.
Whereas the majority of the Judges that constituted the bench of the Supreme Court had determined that the Bill or any one or more of the provisions thereof requires the approval of the people at a referendum, such Bill can become law only if complied with Article 80(2) upon being approved by the people at a referendum and therefore the purported certificate of the Speaker endorsed on the Bill purportedly under Articles 79 and 80(1) of the Constitution is invalid and unconstitutional and,
Whereas the Supreme Court has determined that any Bill or any Provision thereof requires the approval at a referendum the only cause of action available under the law is to comply with the process set out in Article 80(2) and the purported Amendment made to Clause 154G(2)(b) and 154G(3)(b) of the 13th Amendment Bill in Parliament without a further determination by the Supreme Court is unconstitutional and unlawful and,
Whereas the 13th Amendment in Article 154A(3) provides for the establishment of one administrative unit for two or more Provinces, to accommodate the unlawful undertaking given by the then President of Sri Lanka in the Indo-Sri Lanka Accord to establish one administrative unit for the Northern and Eastern Provinces of Sri Lanka on the erroneous and false basis that the Northern and Eastern Provinces form part of the homeland of one single ethnic and /or linguistic community as claimed by the separatist forces and,
Whereas the 13th Amendment has sought to abdicate the legislative power vested in Parliament and the Executive power vested in the President by the division of governmental power and restricted the Parliament and the President respectively exercising the legislative and executive power of the people and thereby offended the unitary character of the State, Whereas the 13th Amendment has vested inter alia police powers (including powers in relation to maintenance of public order) in Provincial Councils which was hitherto exercise by the Government of Sri Lanka, which will be a serious threat to national security concerns of the Republic in as much as, ,
(a) the 13th Amendment provides for the Chief Minister of a Province to directly control the Head of the Provincial Police Force and thereby all Police Officers of the said Force and even national police units operating in any province. (vide Item 11 of the Appendix of List 1 of the 9th Schedule) thereby effectively taking away the powers of the Inspector General of Police and the Government of Sri Lanka exercising any authority over such police force, ,
(b) the 13th Amendment entrusts the responsibility of prevention, detection, investigation of all offences (except the offences specified in the Schedule therein) and institution of prosecutions (subject to the powers of the Attorney General) to Provincial Councils and to enact any law on any such matter and further empower any Provincial Council to prevent any Police Officers of another Province entering such Province (vide the limitations contained in sub paragraph (k) of the 2nd item of List II of the 9th Schedule) and thereby jeopardizing the management of law and order and the national security of the Republic.
(c) the 13th Amendment even restricts police officers of the national police force from being in uniform compelling them to be in plain clothes even when performing the limited responsibilities allowed within a province such as when engaging in prevention, detection and investigation of a scheduled offence (vide Item 10:1 read with 12:1 of the relevant Appendix of the 9th Schedule).
Whereas the 13th Amendment, though based on the Constitutional structure of India, denies the Government of Sri Lanka to intervene in the event of a Province acting against the interests of the Republic, although the Central government of India is empowered to intervene in similar situations. (Vide Article 256 and 257 of the Constitution of India).
Whereas the power of the Government of Sri Lanka to give directions with regard to the manner of exercising executive power by a Province is restricted to a situation where the maintenance of essential supplies and services is threatened or that the security of Sri Lanka is threatened by war or external aggression or armed rebellion (vide Article 154J and 154K) no such limitation is placed under the Constitution on the Government of India and,
Whereas the 13th Amendment seeks to weaken the Government of Sri Lanka whilst strengthening the Provincial Councils and thereby destroying the unitary character of the State, territorial integrity of Sri Lanka and the sovereignty of its people and,
Whereas Sri Lanka is a Free, sovereign, independent and unitary State and it is the duty of the State to safeguard the independence, sovereignty, unity and the territorial integrity of Sri Lanka and the provisions of the 13th Amendment are a threat to the independence, sovereignty, unity and the territorial integrity of Sri Lanka.
BE it enacted by the Parliament of the Democratic Socialist Republic of Sri Lanka as follows:- 1. This Act may be cited as the Nineteenth Amendment to the Constitution. 2. The Constitution of the Democratic Socialist Republic of Sri Lanka (hereinafter referred to as the “Constitution”) is hereby amended by the repeal of ; ,
(a) Chapter XVIIA
(b) Article 155(3A)
(c) Ninth Schedule
3. Article 170 of the Constitution is hereby amended by the substitution, in the definition of “written law” for the words “and includes statutes made by Provincial Councils, orders” of the words “and include orders”.
4. In the event of any inconsistency between the Sinhala and Tamil texts of this Act, the Sinhala text shall prevail.