Reflection on the 13th Amendment

To the Constitution in light of settlement of ethnic conflict in Sri Lanka

by S. Dinesan, Jaffna, June 2016

Reflection on the 13th Amendment

UoJ logo.pngABSTRACT

Sri Lanka is a multi-ethnic, multi-religion and multi-language country even though it is a unitary state. The ethnic conflict is a major issue in the era. As with many civil wars, Sri Lanka’s began with internal conflict between different people groups in the country, primarily between the majority Sinhalese and the minority Tamil. The civil wars come end in May 18th 2009. In Sri Lanka, Tamils who are minorities continually claim self-determination from independent Ceylon. In August 1987, the Sri Lankan Parliament passed the 13th Amendment to the Constitution and the ancillary Provincial Councils Act. It was forced into the Sri Lankan Constitution by India and was passed in the parliament without a public referendum; others firmly believe that the implementation of the 13th Amendment would be a key political solution to national issues. The Sri Lankan Government declared that the enactment of these laws fulfilled the promises made in the Accord, to ‘devolve power’ on the Tamil people. This study examines the basic provisions of the 13th Amendment and the Provincial Councils Act and inquires whether these laws devolved power on the Tamil people or whether these laws amount to fulfill its objective and resolve the ethnic conflict, with power continuing to reside in a Sinhala dominated Central government within the frame of a unitary constitution.

CHAPTER I – INTRODUCTION …………………………………………………………………1

  • Introduction                                                      1
  • Statement of problem 3
  • The Aim and Objectives                                               4
  • Research Methodology 4
  • Research Questions                                         4
  • Research Hypothesis 5
  • Literature Review                                        5
  • Chapter Outline              6

CHAPTER II- NATURE OF THE ETHNIC CONFLICT IN SRI LANK…………….8

2.1 Introduction                                                                                                                       8
2.2 History of the Ethnic Conflict                                                                                           8
2.3 Armed Conflict in Sri Lanka                                                                                            11
2.4 Cause & Consequence                                                                                                      12

CHAPTER III- SALIENT ASPECT OF THE 13TH AMENDMENT OF THE

CONSTITUTION OF SRI LANKA ………………………………………………………13

3.1 Introduction                                                                                                                        13
3.2 Devolution of Legislative Powers                                                                                      14
3.3 Devolution of Executive Powers                                                                                        20
3.4 Provincial Finance                                                                                                              25
3.5 Devolution of Judicial Power                                                                                             25

 

CHAPTER IV- ENFORCEMENT OF THE 13TH AMENDMENT OF THE CONSTITUTION …………………………………………………………………………..26

CHAPTER V- AN ASSESSMENT OF THE 13TH AMENDMENT TO RESOLVE THE ETHNIC CONFLICT IN SRI LANKA………………………………………………………36

CHAPTER VI – CONCLUSION …………………………………………………………..41
6.1 Conclusion                                                                                                                           41
6.2 Recommendations                                                                                                               43

***

6.1 Conclusion

The study has attempted to an assessment of the Thirteenth Amendment of the Constitution to resolve the ethnic conflict in Sri Lanka. Exactly 100 years after the enactment of the Constitution of 1910 which initiated the rift between the two main ethnic communities of Sri Lanka, we are once again contemplating Constitution reform. The political and constitutional landscape has changed markedly. Legislation has been made and repealed, race riots have taken their toll, civil wars have been fought and won and a great deal of blood has been spilled over the last century.

The long lasted civil war silenced on 19th day of May 2009. During the war more Tamils killed and more persons missed. After the conclusion of war, Tamil Nation Alliance, (TNA), Political party, representatives of Tamil people demanded for a Federal state as solution to the ethnic conflict.  After the Civil war, The Provincial Council for the Northern Province was established in 2013. Even though Minorities are not satisfying with the present power sharing mode, because the 13th Amendment failed to set out proper mechanism to share the police power and authority over lands. Provincial Council became a dependence on Central Government to enforce the powers granted by the Thirteenth Amendment.

The question facing Sri Lanka today is either to continue with the 13th Amendment or to go beyond it to a FEDERAL Constitution within a united Sri Lanka. Since its enactment in 1987 the 13th Amendment has had little success. The very purpose of devolution, which was to provide self-determination to the ethnic minorities in the Northern and Eastern provinces has filed. However, now with the separatist war behind us, Sri Lanka can look forward to making the Provincial Council system work for the first time in a peaceful Northern and Eastern province and providing an opportunity for the Provincial Councils to reach fruition in the hands of minority ethnic communities to which may give us a chance to test their full potential.  However, it would be essential for a full devolution of powers as envisaged in the Provincial Council List, including power over land police and police order.

There are many views about what we must achieve in post-war Sri Lanka. There appears to be a general acceptance that reconciliation among the various ethnic groups in the country is the top most priority some think that for reconciliation to be realized we must primarily focus on economic development; others this that we must focus on a political solution; yet others think that what is of crucial importance is the investigation of alleged war crimes and established the truth; some are of the opinion that all those measures are necessary. There are indicators and bench marks developed to measure reconciliation. Most are about specific deliverables-devolution of power, resettlement of IDPs, demilitarization, equitable land policy, depoliticization of institutions and so on.[1]

Therefore one the Tamils view, we have to search for a proper solution under federal set up which should recognize the Tamils’ long term claims. That only will provide a durable solution to this conflict, so here we have to know what Federalism is. Federalism, namely the decentralization and devolution of powers, the court stated was necessitated by the very existence of a multi-ethnic society and the constitutional mechanism to achieve unity through diversity. Democracy was seen as supporting the Principle of Federalism and was mainly concerned with the Canadian Electoral System. Constitutionalism and rule of insure the existence of an ordered society that protects citizens from arbitrary of the multi ethnic society of Canada.[2] The Concept of Federalism of federal from of government signifies the high watermark of appointment of power within a state. Federalism has been response of the question of how to link separate political communities together in order to pursue effectively objective otherwise un-obtainable alone, but without submerging their own identities.

If we want to find out an amicable and durable solution to the ethnic conflict in Sri Lanka, we have first to throw away the present Constitution as the 13th Amendment to the Constitution failed to meet the Tamils’ aspirations and stress on Unitary. Then we have to search for a solution on the basis of Federalism. If we want to once again make this small destroyed island as an elegant flower garden, we have to recognize the Tamils’ long term aspirations and claims those are to recognize their right self-determination and the traditional homeland which do not in any way erode the state sovereignty and give rise to secession. The intended Constitution must guarantee and entrench the provisions to make it impossible to the Central Government to withdraw the federal set up even with the unanimous decision of central parliament and without the consent of Federating regions. For that we the Sri Lankan people must work hard without any discrimination on the basis of race or religion. We have to give up our conservative thought and we will be progressive persons and make this country prosperous.

6.2 Recommendations

Now two main National Parties became together and they are established Good Governance. The Good Government tries to bring a new Constitution for settle ethnic conflict in Sri Lanka. I cannot ensure whether it is possible or not. Even though I will try to give some recommendation to new constitution for resolve the ethnic conflict in Sri Lanka.

Before introduce a new Constitution, what we have first to do is, we have to resettle the Muslims and Tamils who were forcibly evicted by Tamils and Sinhalese respectively from their native places before and during the war period. Muslims were forcibly chased by Tamils from North and East during 1990’s and Tamils were chased by Sinhalese from their native places and Sinhalese were colonized there. So they should be resettled with their consent.

Then first we have to abolish this Provincial Council system and regional bodies should be introduced. We have to divide the country into 3 regions. The North and East should be one regain an Upcountry should be another region. The rest of the island should be the third region. The internal set up within this 3 region may be differing, and we should, if necessary, allow and consent to give more power to some of those region. The three governmental organs- Legislative, Executive and Judiciary should be devolved to those regions. And the Central Government should be made even with unanimous decision, unable to make Constitutional change without the consent of the federating regions. National Security and some instance foreign affairs should be vested with the central government. Further, the power of the central government and regional government should be already enunciated in the Constitution.

The number of members of assembly will be determined according to the population of that particular region. The regional assembly shall have the sole power to pass legislation in relation to the matters allocated to the regions. The Central Government will be in any way nothing to do with those Legislations. If those are unconstitutional the court will strike down them. The powers of the regions, if and when necessary may be differ from one to one as in India. India the state of Punjab and Kasmir are given additional powers.

As far as Judiciary is concerned, there shall be a Court of Appeal with appellate, revisionary and writ jurisdiction for each and every regions and there shall be a Supreme Court with final appellate jurisdiction at the center. Any appeal from any region in relation to any matters other than the constitutional matters should be made possible to lodge with the Supreme Court. There shall be a Constitutional court with sole and exclusive jurisdiction to deal with constitutional matters. There should be judicial review of the legislation, and whenever the central legislature or Regional Assemblies pass legislation which is unconstitutional, and then the Constitutional Courts shall have the power to strike down them. The Judges of the Constitutional Court will be appointed by the Central Government and they should be from each 3 major communities in equal membership.

As far as Central government is concerned, it should consist equal representation from three major communities Sinhalese, Tamils and Muslims. We can say that the main cause of this ethnic conflict is the Sinhalese dominant not only in the government. That is why they do not consider the minorities and their aspirations. And this will rectify the Tamils claim of parity of status and it will make possible to any person even from minority community to become the Prime Minister of this country. Further the Executive Presidential system should be abolished. Then only every community will rely on other community and this will enable them to understand the community of people. Then only the rulers will respected the other communities also. Whatever the powers should be left with Central Government and whatever the powers should be left with Regional Government must be determined by Constitutional law exports, they may be foreign exports and the leaders of every community or their representatives.

Sinhala, Tamil and English languages should be made the official languages of this country. All religious should be respected and given equal position in the Constitution. And the country should be made secular nation. These two were also the main cause of the present ethnic conflict.

Those are difficult to arrange within the unitary state so Sri Lankan Government should enact New Constitution base on Federal character otherwise it is impossible.

[1] Deepika Udagama: National Reconciliation Experiences of Sri Lanka and South Africa

[2] Reference Re secession of Quebec 1998 2SCR 217

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