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Options for Procrastinating on the 13th Amendment


Gomin Dayasri
Hark, hark, dogs do bark; sleeping dogs – the procrastinators, warm stools in high places without attending to the imperatives after securing a 2/3 majority. Awake before it’s too late- this could be the last call on the 13th Amendment.
The impact of the 13th amendment can be diminished or demolished, satisfactorily, if the legitimate grievances of Tamils, as identified in the LLRC report and accepted by the government in its Action Plan presented to Hillary Clinton, is implemented/ This is a preferred alternative. It means directly addressing the problems of Tamil people in the North/East, satisfying their prime necessities. Political power the TNA seeks through the 13th amendment to reach a circumscribed federal status is ancillary and could be averted.

Difference stands out – the TNA is greedy for power while Tamil people seek relief for many of their unresolved problems. The TNA will never seek reconciliation between the Sinhalese and the Tamils, with or without the 13th amendment, since it needs the issue survival and strives for acrimony between communities, as did the LTTE.

Procrastination on the LLRC/Action Plan will be felt more in March 2013 than November 2012 at the UNHCR. Be ready to face allegations of sub-standard and undone work at the coming sessions. Peal every bell in temple, kovil or church – it falls on deaf ear. Failure to push officials who failed to present positive results gives us a bad name. Timely action on promised premise would have assuaged India and the USA and helped to prevent efforts of a silent regime change that is being engineered from outside our shores.

The government specifically sought a 2/3 majority and voters nearly provided it to a government that had gained confidence by successfully wiping out terrorism. Defections that followed provided the needed numbers. Has anything worthwhile materialized out of this majority? Why was it sought and why was it provided? The answer is obvious – to change the constitution.

Imposed forcibly by India, it being no home grown remedy: the 13th amendment has been in existence for nearly 30 years, without any beneficial impact. It’s a wasteful extravagance that has remained without repair or replacement: no undertaking to rectify or revoke its obnoxious provisions, notwithstanding talk and more talk. A task, only Mahinda Rajapaksa is capable of fulfilling in the present political context if he is sufficiently fired up and possesses a team to achieve it – instead of nitwit voodoo advisors.

Government faults the 13th amendment and there is little else beside its loose talk of a 13 plus/minus situation to irritate India: the Opposition supports the 13th amendment and is totally discounted, as shown when the vote is exercised at elections. The 13th amendment continues Reign supreme and a woeful future awaits Sri Lanka if the tendency to dawdle remains untouched.

National experience shows Sri Lankans can make things turn for the better if decisions, however hard, are made. Rallying around the national flag the people undertook a mission to back the security forces to the hilt, in more gruesome times, to snatch a victory from the jaws of defeat. Sri Lankans have the spirit and the dedication to achieve the impossible, asking hostile nations to mind their affairs without interfering in our domestic matters.

Has Lanka’s euphoria waned and the dedication dimmed with the post war architecture where skeptics have gained ground? Gone back for a snooze in the land of nod? It’s more convenient to do nothing and sit on your backside allowing the 13th amendment to wend it way on tiptoe on interpretations given by the judiciary. Unconsciously, we are entrusting the upkeep of the constitution to the judiciary – a matter that was never contemplated by the founding fathers who later had to helplessly watch the weaving of an Indian design around the 13th amendment, mother of most problems, in the time of J.R. Jayewardene.

The 13th amendment has resurfaced with suggestions it be leveled to the ground, ironically coming from sources deemed influential and persuasive. The country is in it’s last lap with a 2/3 majority on its final journey before being laid to rest– it’s a now or never opportunity – with five options to choose from- (A) Confer powers so far not delegated, including police and land powers, to the Provincial Councils and attach the concurrent list to the provincial council list. (B) Leave the 13th amendment as it is and procrastinate with idle small talk. (C) Eliminate police and land powers conferred on the provincial councils and redistribute the subjects dealt in the three schedules whereby national interest is safeguarded (D) Take the 13th amendment comprehensively off the constitutional map and redraft provisions to provide for the hiatus, (E) Leave it to judiciary through interpretation to determine whether Sri Lanka’s constitutional character is bent towards a exclusively unitary or a semi-federal structure. If judicial interpretation swings in favor of the ‘federophiles’ it would lead to federalism and a division of the country.

Option A:

This is the desire of the TNA and left elements within and outsize the government. The TNA craves through the 13th amendment and with favorable judicial interpretations, to reach the promised land of Eelam via federalism through a legislative cum judicial process. For the left, with its ageing leadership more ready for nursing homes than parliament, their political philosophy been laid to rest in the mausoleums of Stalin and Mao Tse-tung by the voters. They do not count any more except as votes in securing a desired majority in Parliament – a heavy price to be paid for having them as appointed MPs on the parliamentary payroll.

Option A is comprehensively outside the Rajapaksa agenda and probably not favored by the UNP in conferring police powers to the Provincial Councils. But the trends in judicial interpretations are unpredictable. It was safe under Sarath Silva in the Supreme Court as in his patriotic moments he would not permit a swing towards federalism after his decision in the de-merger case.

Option B

This is the procrastinators’ dream world and a likely eventuality that will be satisfactorily to the TNA, as they would look forward to achieving their objective in the years ahead through a Supreme Court veering towards their thinking under a changed administration. Leaving the 13th amendment in its present form places the Supreme Court in a pivotal position to interpret the constitution to confer more or less powers to Provincial Councils – like tossing a coin in the air to watch whether it flips heads or tails. Such are the ways of interpretation.

Option C

If a constitutional change is envisaged, it is the least controversial route to take on the 13th amendment. If properly marketed using a bipartisan approach, the UNP may come on board. Only a few left leaners will be left out from the southern block. More likely, the UNP may change course to use it as a bargaining chip to make inroads into the minority vote. If the wrong option is taken, the UNP will have many more years in the opposition if the national fervor reaches a climax. If option C is taken the venomous sting is de-fanged out of the 13th amendment but the extravagances associate with the Provincial Councils will remain. To reach grassroots, Grama Sabha system would be an imperative need to supplement the vacant mezzanine floor that exists between the tiers of the Central Government and the People at ground level.

Option D

This is the most favorable option from a country perspective to restructure the entire constitution to satisfy the needs of people after ending terrorism – jettisoning the Indian edition of the 13th amendment. It requires a bold initiative President Rajapaksa alone is capable of taking and if accomplished satisfactorily will be of lasting value. The people will undergo any economic hardship to achieve the objective if attended with a sense of justice and equity. Opposition from hostile local and international forces would be immense. Would the government be strong enough to overcome the onslaught as during the war? The blessing of the majority will be with such a venture.

Option E

The Supreme Court can freely interpret the Constitution and should not be faulted on interpretation with the 13thamendment in place: the dividing line is running thin – a most disturbing aspect. This is the route to follow to get on the federal highway and the TNA is already on a by-road. Jurisprudential schools believe that interpretation by the judiciary is often a discretionary inclination based on individuality and is the reason for a judge in the USA to have his track record minutely examined before appointment. The fault is more with the legislature for placing the judiciary in jeopardy by introducing the dubious 13th amendment to the constitution leaving scope for interpretation. Leaving such power of interpretation in a body not elected by the people means that the fate of a nation could be decided by a few. Loyalty of the Supreme Court to a unitary state as declared by the Constitution, will be the decider and composition of a single bench to hear a crucial case can change history.

Sinhala lobbyists maintain that grievances are common to the people of all communities which is an over simplification of a grave issue. True, most grievances are but not all, with a few of the prominent being exclusive to varied ethnic groups. Language rights in the use of Tamil conferred in 1958 by legislation have yet to be fully functional and are indeed belated for which all governments should take the blame. If a trilingual society emerges, as currently envisaged, problems can be solved by a direct dialogue and learning the others language has been endorsed by 94% of the Tamils in the North /East and 92% of the Sinhalese in the South as revealed at recent survey undertaken by the government. Naturally the TNA does not support the venture.

Even at the cost of being accused of being chauvinists by the extreme Tamil elements and as ‘Tigers’ in sheep’s clothing by a few in the Sinhala diaspora, we must realize that we can live in harmony provided we understand rationally the problems others face instead of thinking only of our problems alone.

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