The 13th Amendment and its MISPERCEPTIONS
Posted on May 2nd, 2014

By Neville Ladduwahetty  Courtesy Island

The message in comments such as “to show concrete movement towards a meaningful devolution of power” and “to ensure that Provincial Councils are able to operate effectively”, with the most recent being the need to “expeditiously implement the 13th Amendment”, is that power has NOT been devolved from the Center to the Provinces. This is factually not correct. This misperception is due to the inability to appreciate that while power has constitutionally been devolved from the center to the periphery, how these powers work in practice depends on the structural context in which they operate. This inability to separate the constitutionally legal from the operational has led to the distorted perception that power has not been devolved.

Repeatedly quoted comments and phrases have the potential to mislead. For instance, many incorrectly infer that the 13th Amendment has not been implemented. Such an inference is incorrect and carries serious consequences. The raw message conveyed is that the center is reluctant to devolve power to the periphery. This perception may be natural considering the opposition expressed for the 13th Amendment over the years, and the strident calls made from time to time to repeal it altogether. The question though is whether the opposition is to the concept of devolution per se, or to devolution to the province as the unit of devolution for reasons of its impact on territorial integrity.

The more dangerous and consequential implication from an inference that the 13th Amendment has NOT been implemented is that the majority Sinhalese are reluctant to devolve power to the minorities, in particular to the Tamils. Consequently, the message communicated both nationally and internationally is that there is a deliberate effort to stymie devolution. No attempt has been made by successive Governments to present the facts as they really are; i.e., that power has in fact been devolved constitutionally from the Center to the Periphery and that how this operates is dependent on the existing structural framework in Sri Lanka. The cost of this miscommunication to Sri Lanka has been significant, and could very well be more so in the future. Therefore, there is an urgent need for a campaign to set right the distorted perceptions and for commentators to be more responsible with their pronouncements.

EXISTING STRUCTURAL CONTEXT for DEVOLUTION

The current structural context for devolution separates Executive and Legislative powers. Executive powers are exercised by a Governor appointed by the President. Legislative powers on the other hand, are exercised by an elected Provincial Council with a Chief Minister and not more than four other Ministers.

According to Article 154C of the 13th Amendment: “Executive power extending to the matters with respect to which a Provincial Council has power to make statutes shall be exercised by the Governor of the Province either directly or through Ministers of the Board of Ministers, or through officers subordinate to him, in accordance with Article 154F”.

Clause 154F states:

(1): “There shall be a Board of Ministers with the Chief Minister at the head and not more than four other Ministers to aid and advice the Governor of a Province in the exercise of his functions. The Governor shall in the exercise of his functions, act in accordance with such advice, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.”

(2) “If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called into question in any Court on the ground that he ought or ought not have acted on his discretion. The exercise of the Governor’s discretion shall be on the President’s directions”.

In addition to the powers granted to the Governor under the Constitution’s Provincial Councils Act No. 42 of 1987, the Governor is responsible for the Annual financial statement as per paragraph 25 of the Act which states: “The Governor of a Province shall in respect of every financial year, at least five months before the expiration of such financial year, cause to be laid before the Provincial Council of that Province, a statement of estimated receipts and expenditure of the Province for that year…”.

In respect of the Provincial public service, paragraph 32 states:”Subject to the provisions of any other law the appointment, transfer, dismissal and disciplinary control of offices of the provincial public service of each Province is hereby vested in the Governor of that Province”.

DEVOLUTION UNDER CURRENT  PROVISIONS

It is evident from the foregoing that the Governor of a Province is constitutionally empowered to exercise Executive powers relating to matters in which a Provincial Council has the power to make statutes. In addition, the Governor is responsible for the preparation of the Annual financial statement and for the administration of the provincial staff including their appointment, transfer, dismissal etc. However, the Governor has three options as to how he exercises his Executive powers. They are: “either directly or through Ministers of the Board of Ministers or through officers subordinate to him”. It was this provision that enabled the Governor to exercise powers in the absence of elected Provincial Councils in the Northern and Eastern Provinces during the conflict, and which enabled administrative affairs to continue relatively unhampered.

Although the elected Provincial Council, the Board of Ministers and the Chief Minister are expected to provide “aid and advice”, the Governor for his part “shall act in accordance with such advice”, provided that such advice does not violate the Constitution. The underlying premise in the current arrangement is the need for the Executive and the Provincial Council to cooperate in the exercise of functions relating to the Province. Furthermore, it is the degree of cooperation between the Governor and the Chief Minister with his Board of Ministers that would make devolution as meaningful and effective as possible, or make it an unworkable proposition. In the final analysis therefore, devolution works if the parties concerned develop a cooperative working relationship.

Such relationships generally exist when the Governor and the Provincial Council represent similar political interests. Even if the Governor and the Provincial Council represent different political interests as it does in the Northern Province, devolution would still work provided the Governor and the Council set aside their differences and work in a spirit of cooperation. The success or failure of devolution in the current set up is too dependent on personalities and how well they get along. This is unsatisfactory. A preferred arrangement would be where the relationship between the Governor and the Provincial Council is institutionalized in order to minimize dependence on personal relationships. However, until such time, the current structural context is such that performance of devolution is dependent on the ability of the Governor and the Provincial Council to work together.

Challenges exist whenever Executive and Legislative functions operate separately as they do between the President and Parliament in Sri Lanka, or the President and Congress in the USA. It would also be the case if the political formation at the center is different from the political formations at the periphery in any country where Executive and Legislative powers are separate. The lesson is that while political power is legally devolved, in practice its operation is dependent of center- periphery dynamics.

IMPLEMENTATION of the 13th AMENDMENT

The implementation of the 13th Amendment is dependent on the structural context cited above. One may find the current context inadequate in respect of powers devolved, and unsatisfactory as an effective management tool in which devolved powers could be implemented. But, however deficient the current context may be, the 13th Amendment has to function within existing parameters and not within an imagined utopia. Therefore, whether the 13th Amendment is implemented in full or partially is not the issue, but the fact that what is devolved has to operate within the constitutionally set boundaries.

This means that even if Police powers are withheld, the remaining 36 subjects in the Provincial List (List I) and a further 36 subjects in the Concurrent List (List III) devolved under the 13th Amendment could be made to work. And making it work depends on a partnership that involves a Governor appointed by the President and a Provincial Council elected by the people. In these circumstances, BOTH parties become equally accountable and responsible for the success or failure of devolution.

In the context of this reality, statements such as a demand to “implement the 13th Amendment fully” or the “need for the expeditious implementation of the 13th Amendment” convey an impression that one of the partners, (a Governor and through him the Government) is solely responsible for the success or failure of devolution. This perspective is not only misplaced but also reflects a lack of understanding of the framework within which devolution operates. A more positive contribution could be made by giving attention to making devolution work within current constitutional realities.

CONCLUSION

The pervading perception is that the 13th Amendment needs to be implemented and expeditiously so at that. The reason for this perception could be because of opposition to devolution per se, or to devolution to the province as the peripheral unit, or to the structural context provided in the Constitution that requires an appointed Governor responsible for Executive powers of a Provincial Council and an elected Council that is expected to “aid and advice” the Governor in the execution of his functions, to collaborate in order to make devolution work.

The inability to appreciate that devolution is dependent on collaboration has caused commentators to assign the entire responsibility to the Center leaving the Periphery free of any responsibility for its success or failure. If devolution is to mean “sharing of power” between the Center and the Periphery both parties must actively engage with each other for the system to work. As far as the Northern Provincial Council (NPC) is concerned this means the need for the TNA and the Governor to work together to make it work. Passing the buck and expecting devolution to work on its own impetus without the positive involvement of both the NPC and the Governor is pedestrian.

The primary cause for the Sri Lankan conflict is attributed to the inability of the majority and minority communities to share political power. The 13th Amendment is an arrangement devised with the blessings of India for the specific purpose of meeting this need. The failure of successive Governments to make public the facts pertaining to the 13th Amendment has enabled the Tamil community, both nationally and internationally, to exploit and elicit the sympathy of the International Community, with Tamil Nadu playing a pivotal role in India/Sri Lanka relations, with serious consequences to Sri Lanka. Therefore, unless the Government takes effective action to explain the facts, the prevailing misinformation of the detractors who propagate the notion that the 13th Amendment needs to be “implemented expeditiously”, has the potential to severely dent the hard won peace.

 

11 Responses to “The 13th Amendment and its MISPERCEPTIONS”

  1. douglas Says:

    The 13th Amendment and its “Misperception” arose with the establishment of the NPC. How did it happen?

    The major political alliance that was formed to contest the election of members to the Northern Provincial Council was TNA. This organization’s major and the sole objective was to work towards a “Separate State” for both North and East.
    The alliance, in fact, issued a “Manifesto” which mainly brought out the fact of “Self Rule” for the Province rather than to work within a framework of “devolved” power. This “PHILOSOPHY” of “SEPARATE STATE” was the main criterion on which the TNA worked and that was also the message given to the voter.

    That was not only “MISREPRESENTATION” but also against the Sri Lanka Constitutional Provisions pertaining to the 13th Amendment. When such a moves viz. that go against the Constitution of Sri Lanka have been visibly and publicly demonstrated, the Central Government should have immediately responded. We could have withheld the elections and sought legal opinion from the appropriate courts. In my opinion, we miscalculated the behaviour and the targets of the TNA political agenda and failed miserably to uphold our rights to the Constitution.

    What we did was to announce to the world :”look how we hold democracy so dear. We hold elections all the time”.

    Now what do we find in the Norther Provincial Council? A “FRANKENSTEIN’S MONSTER”.

    Have we told this to the world or at least to the nation? NO. This is our failure and we still do not admit it and take appropriate steps to maintain our credibility and strength.

  2. Mr. Bernard Wijeyasingha Says:

    Devolve land and police powers to the Northern and eastern provinces will evolve the creation of Eelam

  3. Nanda Says:

    BW,
    Minorities have the land powers already , officially and unofficially. Presidential commission is empowered to give land to Tamils and Muslims. This is a fact, not rejected by MR or governement. Ealam and Shia Lanka is in the making right now.

  4. Lorenzo Says:

    Tamil terrorist revival is in Endia too!!!

    “A probe by the National Investigation Agency (NIA) has revealed that operatives from banned Tamil supremacist outfit Tamil Nadu Liberation Army (TNLA) had allegedly planted a pipe bomb under the car of union minister V Narayansamy in Puducherry in January this year.

    TNLA had been banned by the centre in 2002 as it was found be involved in terror activities.

    “The NIA is going to charge sheet some of the operatives of TNLA for planting a bomb near Narayanswamy’s car very soon,” said a counter-terror official requesting anonymity.

    “Islamic terror groups are prime suspects in Thursday’s twin blasts in the Bangalore-Guwahati express. We have received more than 10 Tamil Nadu-specific intelligence inputs about terror plans of Pakistan-based outfits like Lashkar in the last six months,” said the official.

    After the Puducherry incident, the TNLA operatives also allegedly tried to target a supermarket in Madurai and finance minister P Chidambaram’s house in Shivganga.

    TNLA once worked closely with the separatist Liberation Tigers of Tamil Eelam (LTTE) before its network was decimated in the state after the assassination former Prime Minister Rajiv Gandhi in May, 1991.

    In its present avatar, the outfit works against what it sees as the anti-people policies of the government. It is against the entry of FDI in the retail sector and also opposes the Kudankulam nuclear power project in Tirunelveli district of the state.

    – hindustantimes

  5. AnuD Says:

    DEvolve power to a tamil govt dominated by hindus. Get together with them focus on getting rid of all other foreign influences includes foreign cultures.

  6. Lorenzo Says:

    AnuD,

    NO devolution.

    Viggie is a HINDU and almost ALL NPC racists are HINDUS.

    Hindustan is a foreign country.

  7. Lorenzo Says:

    Even Tamil Madu capital is NOT Tamil! This is the Tamil trend EVRYWHERE of TAMILIZING anything and everything. Excellent find.

    “What does Chennai mean? The question troubled Paris-based historian J B P More quite a lot. After painstaking research, he found the answer.

    In his recently released book, titled ‘Origin and Foundation of Madras’, More says, “Chinapatnam and Chennapatnam were the other names for Madras used by Tamil and Telugu settlers in the area. Chennapatnam was ‘Tamilised’ as Chennai but the word didn’t mean anything in Tamil. It’s undoubtedly a Telugu word.”

    Madraspatnam was derived from Medu Rasa Patnam, said More, who was in Chennai on Saturday to release his book. “When Nayak Venkatappa (a local chieftain) issued a grant (a portion of the area where subsequently Fort St George came up) in favour of the English in 1639, only Madraspatnam was mentioned in it. But during the 1640s, two new names for Madraspatnam or for the area inhabited by Tamils and Telugus around Fort St George seems to have come into existence. They were Chinapatnam and Chennapatnam,” he said.

    Chinapatnam would have been the first name that would have come into existence in the Tamil-Telugu quarters to signify the Black Town of Madraspatnam. “‘Chenna’ in Telugu means fair and is not to be confused with the Tamil ‘Chinna’, which means small. In Tamil, ‘Chenna’ is meaningless,” said More.

    He said in the Tamil Lexicon, the Tamil word ‘Cennai’ has been mentioned which would signify ‘a drum announcing religious procession of an idol’. More said there was no reference in documents and literature of the period to ‘Chennai’ as a drum.

    “In the document of Beri Timanna, we find ‘Chenna’ written as ‘Chennai’. Thus Chenna Kesava Perumal became Chennai Kesava Perumal and Chennapatnam became Chennai Pattanam.

    This seems to be purely the work of a translator of the 19th century who had preferred to Tamilise the Telugu word ‘Chenna’ into ‘Chennai’ so it sounded more Tamil,” said More. “The word ‘Chennai’ seems to have been born to designate Madras town. Its origin is Telugu. There is nothing Tamil in it,” he added.”

    – timesofindia

  8. Lorenzo Says:

    This is what SL too needs. Well done Bibi.

    “Israel already has basic laws that give adequate expression to the country’s democratic nature, and now needs one that articulates its Jewish character, Prime Minister Binyamin Netanyahu said Sunday explaining his decision to promote a basic law defining Israel as a Jewish state.

    Speaking at the weekly cabinet meeting, Netanyahu said that the law he will promote will define the national rights of the Jewish people to the State of Israel, and that it will do so “without infringing on the individual rights of every Israeli citizen in the State of Israel.”

    Netanyahu said this law will reinforce the status of the Law of Return as a basic law, and anchor into a basic law the status of national symbols such as the flag, the national anthem, the status of Hebrew “and other components of our national identity.”

    Netanyahu said these elements of Israel’s national identity were under “constant and continuous attack” from abroad as well as from home.

    The State of Israel’s existence, he said, flows from it being the “national home of the Jewish people,” and the deep link between the people of Israel and the land of Israel.

    “There are, of course, those who do not want Israel to be defined as the nation-state of the Jewish people,” he said. “They want a national home for the Palestinians to be established alongside us, and that Israel will gradually turn into a bi-national, Arab-Israeli state, inside shrunken borders.”

    But, Netanyahu said, it is impossible to hold the “national stick” at both ends.

    “They cannot say they want to separate from the Palestinians in order to prevent a bi-national state, something which has a certain logic, and on the other hand sanctify a bi-national, Israel-Arab state within the permanent borders of the State of Israel,” he asserted.

    While Netanyahu said there is full civil equality in Israel, it is “the nation state of one people only – the Jewish people – and of no other people.” The law he will promote, he said, will anchor that idea into a basic law.

    Netanyahu said that the wording of the law will be formulated in consultation with all the coalition partners, so that “it preserves the values of Israel as a Jewish democratic state.”

    The head of one of those coalition partners, Justice Minister Tzipi Livni (Hatnua), said in an Israel Radio interview that she was adamantly opposed to the law currently being discussed, and to “any law that gives superiority” to the Jewish nature of state over the country’s democratic values.

    Livni said she has long been in favor of anchoring into law the definition of Israel as a Jewish democratic state – “the national home of the Jewish people and a democratic state.” She said the essence of Zionism was those two values working together: “Every citizen equal in a state that gives expression to the self determination of the Jewish people.”

    Livni made clear she would only support legislation where the country’s “Jewish” and “democratic” components will have the same weight, “not more Jewish than democratic, nor more democratic than Jewish.”

    Defense Minister Moshe Ya’alon, meanwhile, came out in favor of the law. He said that the heart of the Israeli-Arab conflict is the Arab opposition to the existence of a Jewish nation state.

    The Arabs, he said, want an Arab-Palestinian state, free of Jews in Judea, Samaria and Gaza, and another state alongside it that will be “something mixed, not a Jewish nation state.”

    “To my regret, some among us are confused and ask why not establish a ‘state for all its citizens,’ or a bi-national sate. I think the law is important to remind us what is the essence of the Jewish national home,” he said.

    This definition does not mean, Ya’alon made clear, that non-Jewish minorities will live in the country without the same rights as Jews. “I do not think there is another state in the region where the Arabs enjoy the degree of human rights that they enjoy in Israel,” he said.”

    – jpost.com

    ………………………………………………………………………………………………………………………………………………………………….

    How true about SL too!!

    GOSL should copy Israel and bring a law to DEFINE SL as a SINHALA BUDDHIST UNITARY nation where EVRYONE has equal rights and democracy.

  9. Senevirath Says:

    there is no leader with a back bone in sri lanka to declare that the country is a Sinhala Buddhist country although it has a 2600 old S.B culture
    nobody to even abolish VESAVALAMAI.

    THEY HAVE TAKEN B.B.S TO COURTS

  10. Lorenzo Says:

    SLMC, CWC (GOVT MINISTERS INCLUDED) and Prabha Gonason have pledged support to UNP at the next presidential election!!

    Parasites!!

    Good for the FOOLISH govt. to keep these PARASITES and give them ministries.

    NFF and JHU have threatened to LEAVE GOVT over casinos. GOOD MOVE. They should LEAVE govt. if they have a backbone and demand Sinhalese are given houses in Jaffna. Weerawansa and Ratana Thero will be in rubbish bin after next election if they don’t have a backbone.

    Today ALL govt. MPs are DEMANDED to meet the president at temple trees for a SPECIAL MEETING. President will DEMAND explanation from NFF, JHU, SLMC, EPDP and CWC for not voting for CASINO BILL. Make or break. Possibly the president might DISSOLVE the parliament on 19 May for an early election.

  11. Lorenzo Says:

    Senevirath,

    The few MPs of govt who didn’t vote for the CASINO BILL will be GRILLED today at temple trees.

    Politically inexperienced BASIL is expected to BLAST THEM today.

    BBS goes to jail while Jihad Hackhim gets a ministry.

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