Dharshan Weerasekera

In this my third essay on the problems with the proposed 19^th Amendment, I focus on the benefits the amendment will have to the Eelamists.

The most obvious such benefit, once the President’s powers are transferred to the Prime Minister under Article 33A(2) of the proposed amendment, is the removal of the President’s prerogative under Articles 154J and 154L to either dissolve a provincial council, or have Parliament take over the powers of any provincial council.  But this matter has already been discussed by a number of other writers, so I won’t go into it here.

In this paper, I shall discuss two other provisions of the Constitution, which can also be used with devastating effect against the Eelamists, provisions which will lose their force if the 19^th Amendment were to be adopted.   I refer here to Articles 86 and 129(1).  I shall first describe what these Articles say, then explain their value for combating the Eelamists, particularly at present, and finally explain what would be the situation if the 19^th Amendment were to be adopted.

Article 86 is as follows:

86.  The President may…submit to the People by referendum any matter which in the opinion of the President is of national importance.”

Article 129(1), meanwhile, is as follows:

129(1).  If at any time it appears to the President of the republic that a question of law or fact has arisen or is likely to arise which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to the Court for consideration.”

I shall now explain how the two aforesaid provisions are valuable tools to combat the Eelamists, particularly today.  In order to understand this matter, it is first necessary to understand the Eelamists’ present strategy, i.e. what their immediate goals are.

I have dealt with the above subject at some length in another essay (The significance of the Northern Provincial council’s ‘Genocide Letter” in the context of the ongoing UNHRC investigation against Sri Lanka,” Lankaweb.com, 18-2-15) and refer the reader to that essay for more details, but, in gist, my view is that the Eelamists’ short to mid-term goal is to set up the conditions for a demand for a referendum on secession, to be made through the international community.

For purposes of this essay, I shall merely reiterate my conclusion from that previous essay, but add that there is an even more immediate goal the Eelamists are trying to achieve, which I hadn’t mentioned earlier.  This goal (which is of course related to the goal mentioned above) is to move for a referendum on merging the Northern and Eastern province

Proof of this latter goal can be garnered from the questions that Thanthi TV asked of Prime Minister Ranil Wickremasinghe, when they interviewed him in early March 2015.  I quote below the relevant exchange, taken from the transcript of that interview, published in The Hindu of 7 March 2015.

Thanthi TV:  The other concern is about the merger….Would you consider the merger of the North and the East?

R.W:  The Constitution of Sri Lanka provided for 9 provinces and that any merger requires a referendum in both those provinces.

Thanthi TV:  Are you for referendum now?

R.W:  If the two provincial councils want a referendum, then we will hold a referendum.

Thanthi TV:  Are you okay?

R.W:  If the two provincial councils…Not only there, if two provinces anywhere want to merge and they pass it then we have to agree.

Thanthi TV:  If there is a resolution passed by Northern and Eastern Provincial councils, they pass a resolution in demand of a referendum, the central government is okay?

R.W:  Then the central government must hold a referendum.[1]

To digress a moment, for the record, the Constitution of Sri Lanka, to the best of my knowledge, does not say anywhere that provinces can be merged by way of referendums.  Here’s what Article 154A(3) of the Constitution (which I presume is what the PM is referring to in the statement any merger requires a referendum”) says:

154A(3).  Notwithstanding anything in the preceding provisions of this Article, Parliament may, by, or under, any law provide for two or three adjoining Provinces to form one administrative unit with one elected Provincial Council, one Governor, one Chief Minister and one Board of Ministers and for the manner of determining whether such Provinces should continue to be administered as one administrative unit or whether each such Province should constitute a separate administrative unit with its own Provincial Council, and a separate Governor, Chief Minister and Board of Ministers.”

To repeat, the power to allow a merger is vested exclusively with Parliament.  Parliament decides whether or not it should be done, and how it should be done; the provincial councils have no say in the matter.  (So, either the Prime Minister knows something the rest of us—who only have the text of the Constitution to go on—don’t know, or he is misinformed.)

The point is that if the Indian Press is asking the Prime Minister over and over whether the government will allow a referendum on the merger of the Northern and Eastern provinces, it is a safe bet that the next step in the Eelamists’ game-plan is indeed to demand such a referendum.  It takes little imagination to see that, if the Eelamists get their referendum on merger, they trap the State into eventually granting Eelam.

The Northern Province is now denuded of its Sinhalese residents as a result of the 30-year war.  The population of the Eastern Province is roughly 1/3 Sinhalese, but the Muslims in that Province, who outnumber the Sinhalese, have shown a marked willingness, if not proclivity, to side with the Tamils.  That means, if the referendum on merger were held today, it would be approved.

If a referendum on merger is allowed, there will be no way to refuse a referendum on secession also, when the Eelamists demand it.  Certainly they will not call it a referendum on secession.”  They’ll call it a referendum on internal self determination” or autonomy” or the phrase Wigneswaran is currently using, a dynamic system that would ensure maximum power sharing for the North and the East.”  (See, NPC Chief Minister says time to move ahead of 13A”, The Island, 13 March 2015.)

Whatever they call it, the effect will be that they will have the capacity to secede if and when they want.  Once this is put to a referendum, the Tamils and the Muslims will easily out-vote the Sinhalese in the region, and it will be passed.  And that, as I’ve said, will be the end of the Sri Lankan State, because Sri Lanka will no longer be a single Nation-State, but a league or confederation of mini-States, each with the capacity to secede, if and when they want.  In short, the Eelamists will have won.

I shall now briefly explain how Articles 86 and 129(1) can help stop a move by the northern and eastern provincial councils to demand a referendum on merger.  In my view, the above two Articles give the President two options to save the country if the northern and eastern provincial councils show any signs of preparing a resolution on merger.  They are as follows.

One, using Article 86, the President can call for a referendum on the question of whether the 13^th Amendment ought to be repealed.  There is no question that the 13^th Amendment is of national importance” at present.  If the 13^th Amendment is used as a pretext to allow the Tamils and Muslims in the North and East to consolidate their numerical advantage in a way that leads inexorably to a division of the island, it presages a national calamity, which obviously makes it a matter of national importance.”

In the alternative, the President, using Article 86, could also call for a referendum on whether to retain the 13^th Amendment, but change the unit of devolution, say, to the district instead of the province.  This would also frustrate the plans of the Eelamists, who need the entirety of the North and East, if they are to have a viable Eelam.”

Second, using Article 129(1), the President can request the Supreme Court to re-assess the original ruling on the 13^th Amendment.  The 13^th Amendment became law subsequent to a Supreme Court ruling that said the amendment did not have to be approved at a referendum.  That ruling, however, was not unanimous.  Even at the time, a number of judges objected to it.

Justice Wanasundera, for instance, appended an eloquent dissent, where he argued that the 13^th Amendment required the assent of the people at a referendum.  In the present circumstances, with even the Prime Minister of India stating unequivocally that he expects Sri Lanka to go beyond the 13^th Amendment, it is highly pertinent to re-visit some of those older arguments against the amendment.

The point is that the President, if he senses that the northern and eastern provincial councils are preparing to table a resolution on merger, can ask the Supreme Court to re-evaluate the legality of the 13^th Amendment.

(One of the questions he can pose is whether the interests of justice demand that a Constitutional amendment, passed without a referendum on the advice of the Supreme Court, but which has subsequently led to a situation where certain minorities, by referendum, are in a position to do irreparable harm to the interests of the majority community, ought to be put before the entire people even at this late date, to see whether they want to continue to be bound by the said amendment.)

To repeat, then, the above are the two options available to the President, under Article 86 and 129(1) if the northern and eastern provincial councils try to demand a referendum on merger.

I’ll now turn to the situation that would ensue if the 19^th Amendment were adopted.  Article 33A(2) of that amendment requires the President to follow the advice of the Prime Minister in all his (the President’s) actions.[2]  This is a mandatory requirement, so, the President has no choice but to follow the Prime Minister’s advice when it is offered.

The above means that, if the President senses that the northern and eastern provincial councils are about to move a resolution on merger, he cannot invoke Article 86 or 129(1) to initiate a referendum on the 13^th Amendment, or to request the Supreme Court to re-assess the ruling on the 13^th Amendment, even if he wanted.  He would have to first get the Prime Minister’s approval (i.e. advice”) to invoke the aforesaid two Articles.

Can the Prime Minister, using the powers he gains under the 19^th Amendment, initiate a referendum on the 13^th Amendment, or a re-assessment of the Supreme Court’s ruling on the same?  Theoretically, he can, but there is a practical problem.

As the interview in Thanthi TV quoted earlier indicates, the present PM seems to be of the view that, if the northern and eastern provincial councils pass a resolution demanding a referendum, the central government must hold one.”  So, why would he suddenly change his mind and ask the President to take action under Articles 86 or 129(1) to thwart any such move for a referendum?

It could be, however, that the PM was pulling Thanthi TV’s leg—i.e. he did not mean what he said.  But even there one encounters a problem.  The Prime Minister, whether it is the present one, or anyone else, must maintain the support of a majority in Parliament in order to remain in office.

With the minorities voting in blocs, it will be essential for any PM to retain their support, which support is crucial to his maintaining the overall support of a majority in Parliament.  The minorities, meanwhile (especially the Eelamists) will never support a PM who makes even the slightest move towards endangering the 13^th Amendment.  Therefore, it is reasonable to suppose that the present PM, or any PM, will not make any attempt to endanger the 13^th Amendment.

To summarize, the difference between the situation under the Constitution as it stands at present, and the situation if the 19^th Amendment were adopted, is this.  As matters now stand, the President has the authority to invoke Articles 86 and 129(1) at his discretion, if he considers that an issue of sufficient national importance has arisen.  He does not have to have a majority support in Parliament in order to do it.

The Prime Minister, even though under the 19^th Amendment he wields all executive powers, does not have the same leeway to invoke Articles 86 or 129(1), because he is constrained by the political reality of having to retain the support of a majority in Parliament.

Therefore, from the point of view of an Eelamist, to have the 19^th Amendment adopted, particularly at present, when they have all the background conditions in place ((including now apparently the green-light from India) to move to the next concrete step in the Eelam agenda, is hugely beneficial.  Hence, for this reason also, the proposed amendment must be rejected.

 

 Dharshan Weerasekera is an Attorney-at-Law.  He is the author of, The UN’s Relentless Pursuit of Sri Lanka, and the need for effective counter-measures (Stamford Lake, 2013)   

[1] Ranil Wickremasinghe’s interview to Thanthi TV,” The Hindu, 7 March 2015, www.thehindu.com

[2] I have discussed the proposed Article 33A(2) at some length in my two previous essays on the problems with the proposed amendment, published in lankaweb, and refer the reader to those essays.