{"id":42299,"date":"2015-03-14T20:57:47","date_gmt":"2015-03-15T02:57:47","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=42299"},"modified":"2015-03-14T13:41:14","modified_gmt":"2015-03-14T20:41:14","slug":"problems-with-the-19th-amendment-part-three-benefits-to-the-eelamists","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2015\/03\/14\/problems-with-the-19th-amendment-part-three-benefits-to-the-eelamists\/","title":{"rendered":"PROBLEMS WITH THE 19TH AMENDMENT, PART THREE:\u00a0 BENEFITS TO THE EELAMISTS"},"content":{"rendered":"

Dharshan Weerasekera<\/strong><\/em><\/span><\/h2>\n

In this my third essay on the problems with the proposed 19th<\/sup> Amendment, I focus on the benefits the amendment will have to the Eelamists.<\/p>\n

The most obvious such benefit, once the President\u2019s powers are transferred to the Prime Minister under Article 33A(2) of the proposed amendment, is the removal of the President\u2019s prerogative under Articles 154J and 154L to either dissolve a provincial council, or have Parliament take over the powers of any provincial council.\u00a0 But this matter has already been discussed by a number of other writers, so I won\u2019t go into it here.<\/p>\n

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 19th<\/sup> Amendment were to be adopted.\u00a0\u00a0 I refer here to Articles 86 and 129(1).\u00a0 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 19th<\/sup> Amendment were to be adopted.<\/p>\n

Article 86 is as follows:<\/p>\n

86.\u00a0 The President may\u2026submit to the People by referendum any matter which in the opinion of the President is of national importance.\u201d<\/p>\n

Article 129(1), meanwhile, is as follows:<\/p>\n

129(1).\u00a0 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.\u201d<\/p>\n

I shall now explain how the two aforesaid provisions are valuable tools to combat the Eelamists, particularly today.\u00a0 In order to understand this matter, it is first necessary to understand the Eelamists\u2019 present strategy, i.e. what their immediate goals are.<\/p>\n

I have dealt with the above subject at some length in another essay (The significance of the Northern Provincial council\u2019s \u2018Genocide Letter\u201d in the context of the ongoing UNHRC investigation against Sri Lanka,\u201d Lankaweb.com<\/em>, 18-2-15) and refer the reader to that essay for more details, but, in gist, my view is that the Eelamists\u2019 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.<\/p>\n

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\u2019t mentioned earlier.\u00a0 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<\/p>\n

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.\u00a0 I quote below the relevant exchange, taken from the transcript of that interview, published in The Hindu<\/em> of 7 March 2015.<\/p>\n

Thanthi TV<\/strong>:\u00a0 The other concern is about the merger\u2026.Would you consider the merger of the North and the East?<\/p>\n

R.W<\/strong>:\u00a0 The Constitution of Sri Lanka provided for 9 provinces and that any merger requires a referendum in both those provinces.<\/p>\n

Thanthi TV<\/strong>:\u00a0 Are you for referendum now?<\/p>\n

R.W<\/strong>:\u00a0 If the two provincial councils want a referendum, then we will hold a referendum.<\/p>\n

Thanthi TV<\/strong>:\u00a0 Are you okay?<\/p>\n

R.W<\/strong>:\u00a0 If the two provincial councils\u2026Not only there, if two provinces anywhere want to merge and they pass it then we have to agree.<\/p>\n

Thanthi TV<\/strong>:\u00a0 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?<\/p>\n

R.W<\/strong>:\u00a0 Then the central government must hold a referendum.[1]<\/a><\/p>\n

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.\u00a0 Here\u2019s 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\u201d) says:<\/p>\n

154A(3).\u00a0 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.\u201d<\/p>\n

To repeat, the power to allow a merger is vested exclusively with Parliament.\u00a0 Parliament decides whether or not it should be done, and how it should be done; the provincial councils have no say in the matter.\u00a0 (So, either the Prime Minister knows something the rest of us\u2014who only have the text of the Constitution to go on\u2014don\u2019t know, or he is misinformed.)<\/p>\n

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\u2019 game-plan is indeed to demand such a referendum.\u00a0 It takes little imagination to see that, if the Eelamists get their referendum on merger, they trap the State into eventually granting Eelam.<\/p>\n

The Northern Province is now denuded of its Sinhalese residents as a result of the 30-year war.\u00a0 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.\u00a0 That means, if the referendum on merger were held today, it would be approved.<\/p>\n

If a referendum on merger is allowed, there will be no way to refuse a referendum on secession also, when the Eelamists demand it.\u00a0 Certainly they will not call it a referendum on secession.\u201d\u00a0 They\u2019ll call it a referendum on internal self determination\u201d or autonomy\u201d or the phrase Wigneswaran is currently using, a dynamic system that would ensure maximum power sharing for the North and the East.\u201d\u00a0 (See, NPC Chief Minister says time to move ahead of 13A\u201d, The Island<\/em>, 13 March 2015.)<\/p>\n

Whatever they call it, the effect will be that they will have the capacity<\/em> to secede if and when they want.\u00a0 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.\u00a0 And that, as I\u2019ve 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.\u00a0 In short, the Eelamists will have won.<\/p>\n

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.\u00a0 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.\u00a0 They are as follows.<\/p>\n

One, using Article 86, the President can call for a referendum on the question of whether the 13th<\/sup> Amendment ought to be repealed.\u00a0 There is no question that the 13th<\/sup> Amendment is of national importance\u201d at present.\u00a0 If the 13th<\/sup> 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.\u201d<\/p>\n

In the alternative, the President, using Article 86, could also call for a referendum on whether to retain the 13th<\/sup> Amendment, but change the unit of devolution, say, to the district instead of the province.\u00a0 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.\u201d<\/p>\n

Second, using Article 129(1), the President can request the Supreme Court to re-assess the original ruling on the 13th<\/sup> Amendment.\u00a0 The 13th<\/sup> Amendment became law subsequent to a Supreme Court ruling that said the amendment did not have to be approved at a referendum.\u00a0 That ruling, however, was not unanimous.\u00a0 Even at the time, a number of judges objected to it.<\/p>\n

Justice Wanasundera, for instance, appended an eloquent dissent, where he argued that the 13th<\/sup> Amendment required the assent of the people at a referendum.\u00a0 In the present circumstances, with even the Prime Minister of India stating unequivocally that he expects Sri Lanka to go beyond<\/em> the 13th<\/sup> Amendment, it is highly pertinent to re-visit some of those older arguments against the amendment.<\/p>\n

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 13th<\/sup> Amendment.<\/p>\n

(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<\/em>, 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.)<\/p>\n

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.<\/p>\n

I\u2019ll now turn to the situation that would ensue if the 19th<\/sup> Amendment were adopted.\u00a0 Article 33A(2) of that amendment requires the President to follow the advice of the Prime Minister in all his (the President\u2019s) actions.[2]<\/a>\u00a0 This is a mandatory requirement, so, the President has no choice but to follow the Prime Minister\u2019s advice when it is offered.<\/p>\n

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 13th<\/sup> Amendment, or to request the Supreme Court to re-assess the ruling on the 13th<\/sup> Amendment, even if he wanted.\u00a0 He would have to first get the Prime Minister\u2019s approval (i.e. advice\u201d) to invoke the aforesaid two Articles.<\/p>\n

Can the Prime Minister, using the powers he gains under the 19th<\/sup> Amendment, initiate a referendum on the 13th<\/sup> Amendment, or a re-assessment of the Supreme Court\u2019s ruling on the same?\u00a0 Theoretically, he can, but there is a practical problem.<\/p>\n

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.\u201d\u00a0 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?<\/p>\n

It could be, however, that the PM was pulling Thanthi TV\u2019s leg\u2014i.e. he did not mean what he said.\u00a0 But even there one encounters a problem.\u00a0 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.<\/p>\n

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.\u00a0 The minorities, meanwhile (especially the Eelamists) will never support a PM who makes even the slightest move towards endangering the 13th<\/sup> Amendment.\u00a0 Therefore, it is reasonable to suppose that the present PM, or any PM, will not make any attempt to endanger the 13th<\/sup> Amendment.<\/p>\n

To summarize, the difference between the situation under the Constitution as it stands at present, and the situation if the 19th<\/sup> Amendment were adopted, is this.\u00a0 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.\u00a0 He does not have to have a majority support in Parliament in order to do it.<\/p>\n

The Prime Minister, even though under the 19th<\/sup> Amendment he wields all<\/em> 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.<\/p>\n

Therefore, from the point of view of an Eelamist, to have the 19th<\/sup> 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.\u00a0 Hence, for this reason also, the proposed amendment must be rejected.<\/p>\n

\u00a0<\/span><\/em><\/p>\n

\u00a0Dharshan Weerasekera is an Attorney-at-Law.\u00a0 He is the author of, The UN\u2019s Relentless Pursuit of Sri Lanka, and the need for effective counter-measures (Stamford Lake, 2013)\u00a0 \u00a0<\/strong><\/span><\/em><\/p>\n

[1]<\/a> Ranil Wickremasinghe\u2019s interview to Thanthi TV,\u201d The Hindu<\/em>, 7 March 2015, www.thehindu.com<\/a> <\/em><\/p>\n

[2]<\/a> 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<\/em>, and refer the reader to those essays.<\/p>\n","protected":false},"excerpt":{"rendered":"

Dharshan Weerasekera In this my third essay on the problems with the proposed 19th Amendment, I focus on the benefits the amendment will have to the Eelamists. The most obvious such benefit, once the President\u2019s powers are transferred to the Prime Minister under Article 33A(2) of the proposed amendment, is the removal of the President\u2019s […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12],"tags":[],"class_list":["post-42299","post","type-post","status-publish","format-standard","hentry","category-forum"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/42299","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=42299"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/42299\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=42299"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=42299"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=42299"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}