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Thirteenth Amendment to Sri Lanka Constitution
-
Devolution or Comic Opera
?
[also in PDF]
Nadesan Satyendra, March 1988
 [Note
on 9 December 2007: 'Thirteenth Amendment to Sri Lanka Constitution -
Devolution or Comic Opera' was written almost twenty years ago. Today when
the 13th Amendment and the ancilliary Provincial Councils Act are once again
being touted by New Delhi sources as the step forward towards the resolution
of the conflict in the island, it is opportune to revisit that which was
said in 1988.
"The Government of India Act enacted by the
British in 1935 was described by the biographer of
Subhas Chandra Bose as 'one of history's most sophisticated attempts by
an occupying power to perpetuate its alien rule and yet appear not to do
so'. The 13th Amendment to the Sri Lanka Constitution is no less
sophisticated in its efforts to perpetuate Sinhala rule of the people of
Tamil Eelam and yet appear not to do so.
There are some who may describe the 13th Amendment as a
constitutional sleight of hand par excellence. But, that is to put too fine
a point on the matter. The blunt reality is that those who proclaim that the
13th Amendment is intended to share power between the Tamil people and the
Sinhala people, are, to use a colloquialism, 'trying to pull a fast one' on
the Tamil people.
Under the 13th Amendment power will continue to reside in
a Sinhala dominated Central government, within the frame of an unitary
constitution. The 13th Amendment is intended to secure a constitutional
frame which will enable a Sinhala majority to manage the Tamil people more
effectively than before.
It has created Provincial Ministers who will not exercise
executive power but who will have executive power exercised 'through' them!.
At the same time it has created a Provincial Governor appointed by the
Sinhala President who will exercise executive power in respect of provincial
matters - a Provincial Governor who is also the administrative head of the
provincial public service and who has control of the Provincial Finance
Fund. And the 13th Amendment has created a Provincial Council without
control of planning, without control of the provincial budget, without
control of police and public order within the province, without control of
disposition of state land within the province, without control of higher
education and whose remaining meagre legislative powers are subject to the
over riding will of the Central Parliament. Finally, the provisions of the
Provincial Councils Act itself may be amended from time to time by a simple
majority of members present and voting in Parliament"
Contents
Foreword
- Constitutional trinity of marvels
- Executive power exercised by a
Provincial Governor appointed by the Sinhala President
- The Provincial Governor will control
the Provincial public service
- What then, is the role of the Board of
Ministers and the Chief Minister?
- Chief Minister and the Board of
Ministers are 'to aid and advice' the Provincial Governor
- Those who are required to 'aid and
advice' the ruler should not be left in doubt ..
- President may dissolve the Provincial
Council
- Governor not bound to act on the advice
of the Chief Minister
- But subject to the direction and
control of the President
- Who will control the purse?
- Withdrawal from the Provincial Fund
subject to the sanction of the Governor
- If Ministers do not agree with the
Governor, President may take over
- In sum elected Ministers without
Ministerial power
- And an appointed Governor with
ministerial powers
- Many subjects outside even the
Governor's powers
- Including police and public order
- The Chief Minister is granted the
privilege of being consulted!
- Police and public order in the
Province effectively in the hands of the President
- Disposition of State land in the hands
of the Sinhala President
- The third of the constitutional
trinity of marvels - the Provincial Council
- 'National policy' enables the central
Parliament to legislate in respect of any matter
- Provincial Council - a glorified Local
Authority
- Without control of finance
- The powers of the Provincial Councils
may be changed by a simple majority
- 13th Amendment: Constitutional sleight
of hand
- Fails to address central issues of the
Tamil national struggle
- Denies homeland to the Tamils of Eelam
- And resorts to the subterfuge of a
referendum
- A Machievellian provision intended to
secure that the merger is temporary
- Refuses to recognise the political
reality of the Tamil Nation
- The Tamil Nation in Eelam is more than
an idea
- Thimpu Declaration was the joint and
unanimous will of the Tamil people
- Constitutional script for a comic
opera
Foreword
The writer acknowledges with gratitude his
indebtedness to the reflections of
Sri Aurobindo in an article entitled
'Comic Opera Reforms' in the Bande
Mataram - written in 1907, some eighty years ago.
In August 1987, the Sri Lankan Parliament passed the 13th Amendment to the
Constitution and the ancillary Provincial Councils Act. 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.
The Liberation Tigers of Tamil Eelam, who (together with the other armed
resistance groups) were recognized as 'combatants' by the Accord and who had
emerged as the leaders of the Tamil national struggle, rejected the basic
provisions of the 13th Amendment.
This Article 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 a constitutional script for a
comic opera, with power continuing to reside in a Sinhala dominated Central
government within the frame of an unitary constitution.
Constitutional trinity of marvels
It is difficult to discuss the provisions of the 13th Amendment to the Sri
Lanka Constitution seriously - they are so impossibly burlesque and farcical.
Yet, they have a serious aspect. They show that
Sinhala
chauvinism, like all chauvinisms in the same predicament, has made the time
honoured, ineffectual effort to evade a settlement of the real question by
throwing belated and unacceptable sops to Demogorgon.
Let us, therefore, take one by one the precious and inestimable boons granted
to the Tamil people by the 13th Amendment. The boons are three in number, a
trinity of marvels: a Provincial Governor, a Provincial Board of Ministers with
a Chief Minister, and a Provincial Council.
At the head of this constitutional Trinity stands the Provincial Governor.
Who will select and ordain him? Who else, but the President of Sri Lanka. But
that is not all. The Provincial Governor will hold office 'during the pleasure
of the President'. When the President is no longer pleased with the Governor the
President may dismiss him. And what is the constitutional reason for this
provision that the Governor shall hold office during the pleasure of the
President? The 13th Amendment does not leave us in doubt as to that reason.
It declares that the Governor 'shall hold office, in accordance with Article
4(b), during the pleasure of the President'.
It is a rather curiously phrased
provision. What pray, is Article 4(b) of the
Constitution?
This is the Article which vests 'the executive power of the people' of Sri Lanka
in the President. It is 'in accordance' with the provision of the Constitution
which vests executive power in the President, that the Governor will hold office
at the pleasure of the President. And so let us ask: wherein lies the
constitutional link between the President being vested with executive power and
the Governor holding office at the pleasure of the President - in what way is
the latter 'in accordance' with the former?
The connection, ofcourse, lies in the
character of the office of the Governor created by the 13th Amendment. The
Governor is no mere figurehead. The 13th
Amendment enacts that executive power in the Province in relation to those
matters which are within the competence of the Provincial Council, shall be
exercised by the Governor.
But if the Governor is to exercise executive power in provincial matters,
then the Sri Lankan Constitution which vests executive power with respect to all
matters in relation to the entirety of Sri Lanka, in the President, will be
violated unless, ofcourse, such Governor holds office 'during the pleasure of
the President' and is made subject to the control and direction of the
President.
The reason for the curious wording of the 13th Amendment becomes clear. 'In
accordance with Article 4(b)' of the Constitution which vests executive power in
the President, the Provincial Governor shall hold office 'during the pleasure'
of the President. The 13th Amendment reinforces the powers of the executive
Presidency and secures that the executive power vested in the President by the
Constitution will not be eroded in any way.
Executive power will be exercised by a
Provincial Governor appointed by the Sinhala President
In sum, executive power in relation to provincial matters, will be exercised
by a Governor who will be appointed by the President, who will hold office
'during the pleasure' of the President, and who will exercise his executive
powers as the faithful and loyal servant of the Executive President of Sri
Lanka. That is the naked political and constitutional reality of the character
of a Provincial Governor under the 13th Amendment.
Perhaps, not surprisingly, in May 1988, two long standing Sinhala members of
the ruling party who had served as Ministers in the Sri Lankan Cabinet resigned
their offices and gratefully accepted appointment as Governors of the North
Western and Uva Provinces, so that they may serve the President 'during his
pleasure'. The circumstance that in early 1989, one of them resigned and
accepted appointment as Prime Minister in President Premadasa's Cabinet serves
to underline the close links that the Governors were intended to have with the
Central government.
In June 1988, a Tamil who had served the Government of Sri Lanka with
exemplary loyalty and acceptance as its Chief Justice for the past few years,
was selected and appointed by the President as the Governor of the Western
Province - a Province which has a Sinhala majority. It was an appointment which
was, amongst other things, presumably intended to pave the way for the
appointment of a Sinhala Governor for a Tamil Province.
At that time, we could almost see in our minds eye those honourable and
distinguished Sinhala gentlemen who the President of Sri Lanka would regard as
being qualified to serve as the Governor of a Tamil Province. It was a vision
which was later made real with the appointment of the Sinhala Major General
Nalin Seneviratne, as the Governor of the Northern and Eastern Province. Major
General Nalin Seneviratne had served as Commander in Chief of the Sri Lankan
Army in the war against the Tamil militant movement and now that the war had
been 'won', it was wholly appropriate that he should return to rule the Tamil
people as their Governor.
Here, let us recognise that it matters not whether the Northern Province is
joined with the Eastern Province or not. If the Northern and Eastern Provinces
are joined together, the Tamils will have one Governor. If they are not joined
together, then the Tamils will have the privilege of having two Governors.
Ofcourse, it is always possible that the Sri Lankan government, in a moment
of great daring, at some future date, may even consider it safe to appoint a
Tamil as a Governor for a Tamil Province - so long, that is, that such Tamil
Governor will serve faithfully and loyally 'during the pleasure' of the
President.
After all, there should be no better way of governing the Tamil people
than through a Tamil Governor appointed by, and holding office during the
pleasure of, a Sinhala President!
It would be an approach that would rival that of Hitler who sought to govern
Norway in the 1940s through a Norwegian whose name was Quisling - and thereby
made an everlasting contribution to the vocabulary of the English language. In
the months ahead we shall know whether a Tamil Quisling will come forward to
make a similar contribution to the richness of the Tamil language.
But, be that as it may, let us move on and continue with our efforts to
examine the provisions of the 13th Amendment seriously - however difficult that
task may be. We have seen that the Amendment enacts that executive power in
respect of provincial matters shall be exercised by the Governor. But it does
not stop at that. It enacts that the Governor shall exercise such executive
power 'either directly or through Ministers of the Board of Ministers, or
through officers subordinate to him' .
Executive power shall be exercised by the Governor. The Board of Ministers
and subordinate officers shall have executive power exercised through them - by
the Governor.
As we shall see presently, the juxtaposition of the Board of Ministers with
'subordinate officers' is not without significance. But before we determine the
way in which the Governor may exercise executive power 'through' Ministers let
us first ask: in what way may a Governor exercise executive power 'through'
subordinate officers and who are these 'subordinate officers'?
The Provincial Governor will control the
Provincial public service
The subordinate officers through whom a Governor may exercise executive power
are the members of the provincial public service.
The Provincial Councils Act provides for the establishment of a
provincial public service and enacts that the appointment, transfer,
dismissal and disciplinary control of officers of the provincial public service
of each Province shall be vested in the Governor of that Province.
Furthermore, the
Governor shall provide for and determine all matters relating to the terms and
conditions of employment
of officers of the provincial public service.
And the Governor may delegate his powers of
appointment to a Public Service Commission whose members shall be appointed by
him. At the same time, the
Governor is empowered to alter, vary or rescind any order of the Provincial
Public Commission (whose members are, in any case, appointed by him!).
The intention is abundantly clear. The administrative head of the Provincial
Public Service will be the Provincial Governor and the Governor will thus
be enabled to exercise executive power through officers employed in that
service, who will be 'subordinate' to him and who are required to act on his
directions.
What then, is the role of the Board of
Ministers and the Chief Minister?
But if the 13th Amendment secures that executive power in relation to
provincial matters shall be exercised by a Governor appointed by the President
and holding office at his pleasure, and that he may exercise such power through
a provincial public service which is subordinate to him, what then, is the role
of the Board of Ministers and the Chief Minister? And in what way, may the
Governor exercise executive power 'through Ministers of the Board of Ministers'?
It is here that the comic opera nature of the constitutional script begins
to unfold. A comic opera after all needs some of its participants to provide
light comedy relief.
But first, let us look at the way in
which Ministers may be appointed. The Governor
shall appoint as Chief Minister
the member of the Provincial Council who in the Governor's opinion commands a
support of a majority in the Provincial Council.
Further, the Governor shall on the advice of the Chief Minister, appoint from
among the members of the Provincial Council, no
more than four other Ministers. These are, no doubt, unexceptionable
provisions enacted in the best traditions of a constitutional democracy.
There is ofcourse the little matter about all the Ministers being required to
take their oaths in accordance with the 4th Schedule to the Constitution - a 4th
Schedule which was enacted by the infamous 1983 6th Constitutional Amendment and
an oath which requires the oath taker to forswear any speech or activity
directly or indirectly connected with the establishment of a separate state.
The 6th Amendment to the Constitution
was declared by the International Commission of
Jurists to be a violation of the right to freedom of expression enshrined in
Article 25 of the International Covenant of Civil and Political Rights - a
Covenant to which Sri Lanka is a signatory.
The Provincial Ministers before entering office are required to acquiesce in
and become a willing party to Sri Lanka's violation of its international
obligations. Again, the cynical confidence of the Sri Lankan Government that
this will not be considered too heavy a price to pay by a Tamil for being
permitted to function as a Minister may not be altogether misplaced.
A Tamil can always rationalise his conduct and say that everything has a
price - even participation in a comic opera. The price for becoming a Provincial
Minister is an open disavowal of the demand for a separate state. But let us
ask: having paid the admission price, what is it that the Chief Minister and the
Board of Ministers are empowered to do?
Chief Minister and the Board of Ministers are
'to aid and advice' the Provincial Governor in the exercise of his functions
What are the functions of this
illustrious Chief Minister and this august body, the Board of Ministers? In the
delightful phraseology of the 13th Amendment, the functions of the Chief
Minister and the Board of Ministers are 'to aid
and advice' the Provincial Governor in the exercise of his functions.
We already know the nature of the functions of the Governor, namely to
exercise executive power in relation to provincial matters. But, it would seem
that the Provincial Governor appointed by a Sinhala President will need 'aid and
advice', so that the Governor may perform his functions - not merely 'advice'
but 'aid' as well.
After all, in this day and age, it will not do for an Executive Governor
appointed by a Sinhala President to be seen to act like an autocrat. Democracy
must be seen to done - particularly when it is in fact not done.
The Governor will seek 'aid and advice' so that he may govern the Tamil
people more effectively. In days gone by, the ruler of a people appointed
Ministers to 'aid and advise' him. But today we live in a 'democracy'. And so,
we have an executive President, who will appoint a Provincial Governor, who will
be aided and advised by Ministers, who will be elected by the people.
The Tamil people should be duly grateful that they have been permitted to
'aid and advise' their rulers. The Tamil national struggle has at last borne
fruit! The unselfish friend of the Tamil people, the Indian Government, with the
might of the 4th largest army in the world, has persuaded the Sri Lankan
Government that the Tamil people should be actually permitted to 'aid and
advise' their rulers. The mountain has indeed laboured. And there are some
amongst us who even urge that we should not look a gift horse in the mouth!
Those who are required to 'aid and advice'
the ruler should not be left in doubt about their duties�
But let us continue with our efforts to examine the 13th Amendment seriously.
The 13th Amendment not only states that the function of the Ministers shall be
to 'aid and advice' but it also specifies some of the ways in which such
function shall be carried out. Those who are required to 'aid and advice' the
ruler should not be left in doubt about their duties.
For instance,
it shall be the duty of the Chief Minister to communicate to the Governor
all decisions of the Board of Ministers. The Chief Minister is not given a
discretion in the matter. After all it is only if every decision of the Board of
Ministers is communicated to the Governor, that the Governor will be suitably
'aided' and 'advised'.
'Democracy' demands that the representatives of the people should be open
with their ruler and keep him properly informed. There is ofcourse the further
point - it will not do, for the representatives of the people to go on a frolic
of their own and make decisions behind the back of the Governor. It is not that
such decisions have any legal consequence but those who 'aid and advise' should
know their place in the scheme of things.
Further, so that the Governor may be
properly 'aided and advised' it shall also be the
duty of the Ministers to furnish such information as the Governor may call for
from time to time.
And who will allocate business amongst
the different Ministers? Although the Chief Minister is given the signal and
ceremonial honour of selecting the Ministers it is the
Governor who is empowered to make rules for the allocation of business among
the Ministers.
Again, the
Governor himself may address the Provincial Council and may for that purpose
require the attendance of members - including the Ministers.
President may dissolve the Provincial Council
Further, where any Provincial Council
fails to comply with or give effect to any directions given to it,
it shall be lawful for the President to hold that a situation has arisen in
which the administration of the Province cannot be carried on in accordance with
the Constitution.
The President can thereupon, declare
that the powers of the Provincial Council shall be exercisable by the Central
Parliament and that the powers of the Ministers
shall be assumed by the President.
The inherent logic of the 13th Amendment and the Provincial Council Act
should be only too transparent to the meanest intelligence. The Provincial
Ministers are, at every turn, placed in a subordinate position to the Governor,
so that they may properly discharge their subordinate function of 'aiding and
advising' the Governor to perform his functions.
But, let us continue with our efforts to understand the true character of
this priceless boon that has been given to the Tamil people - a Board of
Ministers with a Chief Minister.
Governor not bound to act on the advice of
the Chief Minister
We have seen that the Ministers are required by law to 'aid and advise' the
Governor - but what does the law require the Governor to do with the aid that is
offered and the advice that is tendered? Is the Governor bound to act on the
advice tendered to him by the Ministers? What does the 13th Amendment say on
this important question? The 13th Amendment provides us with yet another
curiously worded provision:
"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 in his discretion."
It is the familiar technique of giving with one hand and taking with the
other hand. On the one hand the 13th Amendment provides that the Governor shall
exercise his functions in accordance with the advice of the Ministers. On the
other hand it enacts an exception to this requirement.
Let us ask: what is this exception about? What are the matters in respect of
which not only 'by' the Constitution, but also 'under' the Constitution the
Governor is required to exercise his functions 'in his discretion' and
therefore, not on the advice of the Chief Minister?
We have seen that under the Constitution executive power in relation to the
entirety of the Island is vested in the President and that in 'accordance with'
this provision, executive power in respect of provincial matters will be
exercised by a Governor holding office 'during the pleasure' of the President.
The Ministers on the other hand, are not appointed by the President and do not
hold office during his pleasure and accordingly the Constitution cannot and does
not clothe the Provincial Minister with executive power.
Executive power at all times remains vested in the President and may be
exercised only by his loyal and faithful servants. The result is that the
exercise of executive power in respect of provincial matters is a matter in the
discretion of the Governor, in his capacity as a servant of the President: and
in relation to this basic and substantial function, the Ministers may 'advise'
but the Governor is not obliged to act on such advice.
Executive power the Governor is subject to
the direction and control of the President
On the contrary, in respect of the exercise of executive power the Governor
is subject to the direction and control of the President - because he holds
office 'during the pleasure of the President', 'in accordance with Article 4(b)'
which vests executive power in the President.
The only matters in respect of which the 13th Amendment requires the Governor
to act on the advice tendered by the Chief Minister are in respect of formal and
ceremonial matters such as the appointment of the Ministers, the summoning of
Provincial Council meetings, proroguing the Provincial Council and the
dissolution of the Provincial Council - matters which do not affect the
substance of the executive power vested in the President by article 4(b) of the
Constitution.
But what if a question arises as to
whether any matter is or is not a matter in respect of which the Governor is
required to act on the advice of the Chief Minister? Who will decide that
question? The 13th Amendment declares quite openly and cheerfully that if such a
question arises the question shall be decided
by the Governor!
Further, the decision of the Governor on
such a question 'shall be final' and that the 'validity of anything done by the
Governor shall not be called in question in any Court'. The 13th Amendment
further takes care to expressly enact that the exercise of the Governor's
discretion in this matter 'shall be on the President's direction'. And as if
this was not enough to put the Governor's powers beyond scrutiny, it provides
that 'the question whether any, and if so what advice was tendered by the
Ministers to the Governor shall not be inquired
into in any Court'.
In short, the Provincial Governor, under the directions of the President,
will be the final arbiter on what are the matters on which Governor shall act on
the advice of the Chief Minister.
Who will control the purse?
Now, let us ask the further question: how will work in the Province be
financed? After all, executive power in respect of provincial matters, cannot be
exercised without expending money. What does the 13th Amendment say on this
important question of finance? Who will control the purse?
Here, the 13th Amendment enacts that
there shall be a Finance Commission
consisting of the Governor of Central Bank, the Secretary to the Treasury, one
member to represent each of the three major communities.
It would seem that communal representation is acceptable, so long as a
Sinhala dominated Central Government selects the representatives.
But, let us pass on, and inquire: what
are the duties of this body of notables - the Finance Commission? The Finance
Commission shall recommend to the Central Government the amount of the funds
that should be allocated from the Annual Budget for the purposes of meeting the
needs of all the Provinces. The Central
Government shall then determine this total amount required for all the
Provinces after consulting with the Finance Commission.
Who will decide on the amount of money
to be allocated to a particular province? Here it will be the duty of the
Finance Commission to make recommendations to the President as to the
principles on which such funds should be apportioned between the various
Provinces.
The President shall cause every
recommendation made by the Finance Commission to be laid before the Parliament
and shall notify Parliament as to the action
taken .
But in the end it is the President who will determine the amount of the grant
to made to a particular province.
The Constitutional scheme is clear. The Central Government will determine the
block grant in respect of all the provinces. The President will decide the
amount of each separate Provincial grant. The Finance Commission of notables,
owing allegiance and loyalty to the President and the Central Government will
make recommendations. The Central Parliament and the President will, in the
exercise of their discretion, decide the amount of money to be granted.
Further,
the grants made by the Central Government will go into a Provincial Fund for
each Province into which shall also be paid all taxes imposed by the Provincial
Council and all loans advanced to the Provincial Council from the Consolidated
Fund.
No
moneys may be withdrawn from the Provincial Fund except with the sanction of the
Governor
But, in respect of moneys that may be
collected from within the Province, the Provincial Councils Act states that a
Provincial Council may not pass any statute imposing abolishing or altering
provincial taxes, or authorising the receipt of money on account of the
Provincial Fund except on the recommendation of Governor. As always, the
intention is clear. The amount of moneys that will be made available for
expenditure for provincial matters shall be determined by the President, in so
far as Central Government grants are concerned and by the Governor, in so far as
provincial taxes and levies are concerned.
But that is not all. The custody of the
Provincial Fund, the payment of moneys into the Fund and all other connected
matters shall be regulated by rules made by the
Provincial Governor, the loyal and faithful servant of the President.
How may moneys be actually withdrawn from the Provincial Fund for expenditure
in respect of provincial matters? Here we have yet another delightful exercise
in constitutional comic opera.
Section 19(3) of the Provincial Councils Act enacts that no sum shall be
withdrawn from the Provincial Fund except under a warrant under the hand of the
Chief Minister. But, immediately thereafter, section 19(4) enacts that no such
warrant shall be issued by the Chief Minister unless the sum has, by statute of
the Provincial Council, been granted for services for the financial year in
question or has been otherwise lawfully charged on the Fund.
And, then, Section 24(1) enacts that statutes which make provision for the
appropriation of moneys out of the Provincial Fund or which declare that any
expenditure may be charged on the Provincial Fund, shall not be introduced into
or moved in a Provincial Council, except on the recommendation of the Governor!
The result is that no moneys may be withdrawn from the Provincial Fund except
with the sanction of the Governor. In respect of financial matters it is the
Governor who initiates and recommends and it is he who has control and custody
of the Provincial Fund.
If Ministers do not agree with the Governor,
President may take over
What will happen, if the Chief Minister
or the Provincial Council do not act in accordance with the 'wishes' of the
Governor and pass the recommended statutes and issue the requisite warrants in
respect of the Fund? In such a deadlocked situation, the 13th Amendment enables
the President if he is satisfied that a situation has arisen in which the
administration of the Province cannot be carried out, to himself assume all the
functions of the Governor, the Chief Minister and the Ministers and
declare that the powers of the Provincial
Council shall be vested in the Central Parliament.
And the
President's action shall not be called in question in any Court.
The provisions of the 13th Amendment are intended to educate the Chief
Minister and his Board of Ministers about the benefits of loyal and faithful
service to their rulers.
In sum elected Ministers without Ministerial
power
The 13th Amendment is polite, if nothing else. To say that Ministers are
required by law to 'aid and advise' the Governor is a polite way of saying that
the Ministers are required to serve the Governor. They shall serve the Governor
by aiding and advising him. Where the Governor chooses to act on such advise or
accepts such aid, and acts through the Ministers, to that extent, the Governor
is enabled to exercise executive power in respect of Provincial matters
'through' the Ministers.
Under the Sri Lanka Constitution executive power will continue to be vested
in the President and in respect of provincial matters it will be exercised by
his loyal servant the Provincial Governor who is authorised to act through
either 'officers subordinate to him' or through Ministers, who, in relation to
the exercise of such executive power, are also his subordinates. And it is the
Governor who will have financial control. It is the Governor who will be in
control of the provincial public service. The 13th Amendment may, take credit
for inventing a new constitutional species - Ministers without ministerial
power.
And an appointed Governor with ministerial
powers
The truth, ofcourse, is that it is the Provincial Governor who is clothed
with ministerial power in respect of provincial matters - the so called
Provincial Governor is in fact, the Provincial 'Minister' - a Provincial
'Minister' appointed by the President and responsible to the President - a
Provincial 'Minister' who combines in himself the role of both a Provincial
'Finance Minister' and a Provincial 'Minister of Public Administration'.
The Provincial 'Minister' alias Governor will exercise executive power in
respect of all the matters in respect of which a Provincial Council may pass
statutes.3 And in respect of all other matters, executive power will be
exercised by the President directly or through other Ministers appointed from
the central legislature.
It is this creation of a Provincial 'Minister' alias Governor which has been
sought to be passed off as 'devolution' of executive power on the Tamil people!
The constitutional reality is that the 13th Amendment does not devolve executive
power on the Tamil people. That which the 13th Amendment does is to decentralise
administration by creating Provincial 'Ministers' (alias Governors) appointed by
the President and responsible to him for the performance of their functions in
respect of provincial matters.
Many subjects outside even the Governor's
powers
But despite the farcical nature of provisions of the 13th Amendment, let us
persist with our efforts to consider them seriously. The constitutional scheme
is not without clarity.
The Provincial 'Minister' alias Governor will exercise executive power in
respect of the matters on which a Provincial Council may pass statutes. In
respect of other matters, executive power will be exercised directly by the
President or by Ministers of the Central Government. It is in respect of the
matters on which a Provincial Council may pass statutes, that the Chief Minister
and the Board of Ministers have been granted the signal honour and privilege of
tendering aid or advice to the Governor.
In respect of matters on which the Provincial Council is not empowered to
pass statutes, the Chief Minister and his Board do not have that honour and
privilege - because such matters are outside even the competence of the Governor
and fall within the direct purview of the President and the Ministers of the
Central Government.
Let us ask: what are these matters in respect of which the Tamil have not
been granted even the honour and privilege of advising their rulers? Here it
would seem that the 13th Amendment is intended to secure the exemplary principle
that even in the matter of seeking 'aid and advice' a ruler should act with
circumspection and care - after all it will not do for a ruler to seek 'aid and
advice' from his subjects on all matters.
Including police and public order
The Kings of old recognized that the subject of 'police and public order' was
a sensitive area in respect of which a ruler should not depend too much on the
'aid and advice' of the people whom he seeks to rule. At the same time, it was
important that the people who are ruled do not see the iron hand too clearly -
the velvet glove is not without its uses. And so the 13th Amendment continues
with its comic opera - and adopts its familiar technique of appearing to give
with one hand whilst taking away with the other.
On the one hand the Provincial Council List includes the subject of 'Police
and Public Order'. On the other hand, it qualifies this subject by saying
'public order and the exercise of police powers' to the extent set out in the
Appendix (13th Amendment 9th Schedule)
And what does Appendix I enact? It
enacts that the Inspector General Police shall
be the head of the Sri Lanka Police Force which shall be divided into the
National Division and a Provincial Division for each Province.
The Provincial Division shall be headed
by a Deputy Inspector General of Police seconded from the National Service. And
who will select and appoint the D.I.G.? The I.G.P. shall appoint a D.I.G. for
each Province with the 'concurrence of the Chief Minister of the Province', but
if there is no agreement, the President after
due consultation with the Chief Minister, will make the appointment.
The Chief Minister is granted the privilege
of being consulted!
Who will recruit to the Provincial
Police Division? Recruitment shall be made by a
Provincial Police Commission
composed of three members viz the D.I.G., a person nominated by the Central
Public Service Commission in consultation with the President and a 'nominee of
the Chief Minister'. And the
Central Government will be responsible for the training of all recruits.
Neither the Chief Minister nor for that
matter the Governor shall be responsible for the preservation of public order
within the Province. This will be the
responsibility of the Provincial Police Division.
But here too, the prevention, detection and investigation of any offence
against any public officer and any offence prejudicial to National Security or
the maintenance of Essential Services, shall be outside the competence of even
the Provincial Police Division. (13th Amendment, Schedule to Appendix I )
Such offences though committed within
the Province, will fall within the jurisdiction of the National Police Division.
And, in this way, the Prevention of Terrorism Act whose provisions have been
condemned by the International Commission of Jurists as 'a blot on the
statute book' of any civilised country, will continue to be enforced within the
Province by the National Police Division under the direct control of the I.G.P..
But let us pass on and continue with our efforts to examine the 13th Amendment
seriously.
Police and public order in the Province
effectively retained in the hands of the President
The 13th Amendment provides that whilst
the D.I.G. himself 'shall be responsible to and under the control of the Chief
Minister', all Police Officers in the Province
shall function under the direction and control of the D.I.G. of such
Province
The D.I.G.
'shall be responsible to and under the control of the Chief Minister' but
the D.I.G. shall be seconded from the National Division and selected by the
I.G.P., and if the Chief Minister disagrees with such selection, appointed by
the President.
The D.I.G. 'shall be responsible to and under the control of the Chief
Minister' but the D.I.G. will be under the disciplinary control of the I.G.P.
and will be employed on terms and conditions determined by the Central
Government.
The D.I.G. 'shall be responsible to and under the control of the Chief
Minister' but the D.I.G. will be the faithful and loyal servant of the I.G.P.
and the President of Sri Lanka.
The D.I.G. 'shall be responsible to and under the control of the Chief
Minister' but the 13th Amendment provides no means by which the Chief Minister
may exercise any control in respect of the actions of the D.I.G. - except by
appealing to the I.G.P. or the President for assistance.
Executive power lies with the President and his servants - and to the extent
that a Chief Minister is not a servant of the President, the Constitution does
not and indeed, cannot, vest executive power in the Chief Minister.
It is this Provincial Police Division recruited by a Commission which has a
majority of members appointed by the Central Government and which functions
under a D.I.G. who is under the disciplinary control of the I.G.P., who is
answerable to the President, which is clothed with the responsibility of
preserving public order in the Province and the 13th Amendment would have the
Tamil people believe that the subject of 'Police and Public Order' is somehow
'devolved' on the Provinces.
The subject of 'Police and Public Order' is not even within the competence of
the Provincial Governor. It is a subject which is effectively retained in the
hands of the President and the I.G.P. who may act either through the National
Police Division or the Provincial Police division. And Dr. H.W. Jayawardene,
appearing on behalf of his brother, President J.R. Jayawardene before the
Constitutional Court in October 1987 declared openly: "All police officers will
be appointed by the Inspector General of Police who is directly under the
control of the President." (Sri Lanka Sun: 30th October 1987)
Disposition of State land in the hands of
the Sinhala President
Apart from the subject of 'police and public order', there was another which
was close to the hearts of the Kings of old - and that was 'disposition of state
land'. It was not only a way of making friends and influencing people - it was
also a way of bringing about demographic change and managing a people.
During the past several decades, successive Sinhala Governments have used
their control of state land to further their efforts to secure hegemony over the
entirety of the Island. It was a process which gathered momentum in 1936 with
the efforts of a pan Sinhala Cabinet of Ministers to initiate state sponsored
Sinhala colonisation of the Eastern Province. The Census figures tell their own
tale.
In 1921, there were 8744 Sinhala people in the Eastern Province. By 1981,
their numbers had increased to 243, 358 - a twenty eight fold increase in sixty
years! Not surprisingly, the 13th Amendment secures that in the future as well,
disposition of state land is retained in the hands of the Central Government.
Once again, the familiar technique of seeming to give with one hand whilst
taking with the other, is adopted.
On the one hand, the subject of 'Land and Land Settlement' is matter in the
Provincial Councils List. On the other hand this is qualified by the statement:
'Land and Land Settlement' to the extent set out in Appendix II. (13th
Amendment 9th Schedule)
And what does Appendix II enact? It enacts that 'state land shall continue to
vest in the Republic and may be disposed of in accordance with Article 33(d) and
written law governing the matter'. What is Article 33(d) of the Constitution?
This is the article which enacts that the 'President shall have the power to
execute such grants and dispositions of lands and immovable property vested in
the Republic'!
So despite 'Land and Land Settlement' being a matter in the Provincial List,
disposition of state land remains a power vested in the President and the
Central Government. Dr. H.W. Jayawardene, who appeared on behalf of the
President Jayawardene before the Constitutional Court in Sri Lanka in October
1987 was as always, open and frank:
"State land in the provinces will be vested in the President and will not
be given over to the Provincial Councils. The principle of central rule will
not be affected in the distribution of land. Under the Land policy as
envisaged in the Amendment, no state land will be vested in a Provincial
Council - in other words no giving away of state land to the provinces..."
(Sri Lanka Sun: 30th October 1987)
In matters connected with the disposition of state land, just as much as in
matters connected with police and public order, it is the President who will
rule.
The third of the constitutional trinity of
marvels - the Provincial Council
But let us not loose patience. There is a saying in Tamil: Poruthar Poomi
Alvar - those who are patient will rule the land. Let us continue with our
efforts to examine seriously the provisions of the 13th Amendment which have
been touted as a panacea for the Tamil people. Let us turn to the third of the
constitutional Trinity of marvels - the Provincial Council.
The 13th Amendment grandiloquently
declares in Article 154G that every Provincial
Council may make statutes applicable to the Province with respect to the
matters set out in a list referred to as 'the Provincial Council List'.
In addition there is a Concurrent List which sets out matters in respect of
which both Parliament and the Provincial Councils may legislate. Finally, a
Reserved List sets out matters in respect of which only Parliament may legislate
and in respect of which a Provincial Council shall have no power to make
statutes. (13th Amendment 9th Schedule)
At first sight, these provisions may give the impression that the 13th
Amendment confers legislative power on the Provincial Councils in respect of
certain specified matters, on Parliament in respect of certain other matters and
concurrent on both the Provincial Council and Parliament on certain other
matters and may even be regarded as 'federal' in nature. But Professor Claire
Palley, puts the matter clearly:
"If the powers of government are organised under a single central
authority, while whatever powers by local units are held at the sufferance
of the central government, which can exercise supreme legislative authority,
the constitution is described as unitary. If the powers of government are
distributed between central and local government and the central authority
is limited by the powers secured to the territorial units, the state is
federal." (Minority Rights Group Report on 'Constitutional Law and
Minorities')
The constitutional reality is that Article 154G(10) of the 13th Amendment
enacts:
"Nothing in this Article (which empowers Provincial Councils to pass
statutes) shall be read or construed as derogating from the powers conferred
on Parliament by the Constitution to make laws, in accordance with the
Provisions of the Constitution (inclusive of this Chapter) with respect to
any matter, for the whole of Sri Lanka or any part thereof."
Again, the first subject on the Reserved List (i.e. matters within the
exclusive jurisdiction of the central Parliament) is 'National Policy on all
Subjects and Functions'.These Constitutional provisions taken together will
enable Parliament to legislate by a simple majority on 'all subjects and
functions' on the ground of 'national policy'.
'National policy' is a sufficiently broad
cover to enable the central Parliament to legislate in respect of any matter
'National policy' is a sufficiently broad cover to enable the central
Parliament to legislate in respect of any matter on the Provincial Council List.
The law making powers of Provincial Councils do not include 'national policy'.
It was this which impelled Counsel who appeared for the ruling United National
Party to forthrightly declare before the Constitutional Court in Sri Lanka:
"India is a federal state ... in a federal state, the Central government
does not have supreme control over the constituent states... Sri Lanka is a
unitary state. The Provincial Councils are not beyond the executive powers
of the President... The President's directions prevail...The Provincial
Councils shall not make any statutes on any matter affecting national
policy..." (Sri Lanka Sun: 30th October 1987)
Again, it is not only that Parliament
may pass laws by a simple majority, in respect of national policy on all
subjects and functions but also that Parliament may by a simple majority make
laws in respect of any matter set out in the Provincial Council List
if such law is necessary for implementing any treaty, agreement or even any
decision 'made at an international conference, association or other body'.
Finally, to cap it all, in a country
which since 1965, has been governed under emergency regulations by successive
Sri Lanka governments for a period of more than 15 years, the 13th Amendment
enacts that emergency regulations under the
Public Security Ordinance, may override, amend or suspend any statute made
by a Provincial Council.
Further, Article 2 of the Constitution - an entrenched provision which cannot
be amended without recourse to a referendum and which remains unamended by the
13th Amendment, expressly declares that: "The Republic of Sri Lanka is a Unitary
State"
Again the Supreme Court of Sri Lanka has ruled that the Provincial Councils
are 'subordinate' law making bodies subject to the dominant will of the Central
government and for that reason the 13th Amendment did not require the support of
the people at a referendum.
The words of the 13th Amendment are plain. By virtue of its power to
legislate in respect of national policy on all subjects and functions, the Sri
Lankan Parliament is effectively empowered to legislate in respect of all the
three Lists in the 9th Schedule to the 13th Amendment. The 'subordinate'
legislative powers conferred on a Provincial Council in respect of the matters
set out in the Provincial Councils List will be at all times subject to the
dominant will of the Central Government.
Glorified Local Authority
Further, even the 'subordinate' legislative power conferred on a Provincial
Council covers a narrow and limited range of subjects and effectively excludes
disposition of state land, maintenance of public order and higher education. And
significantly, whilst plan implementation is a subject on the Provincial Council
List, planning and formulation of plan implementation strategies is not on the
List.
The Provincial Council will be no more than a glorified local government
authority, with power to enact subsidiary legislation in respect of a few
innocuous matters, such as probation and child care services, market fairs,
cooperatives, animal husbandry and pawn brokers, subject at all times to the
over riding control of the Central government.
Without control of finance
And, even in relation to those subjects in respect of which a Provincial
Council may exercise 'subordinate' legislative power subject to the overriding
will of Parliament, a Provincial Council may not pass statutes if involving a
financial levy except on the recommendation of the Governor.
And in keeping with the powers conferred
on the Governor to control the Provincial Finance Fund, it is the
Governor who shall in respect of every financial year prepare and present to
the Provincial Council a budget of the estimated receipts and expenditure for
that year.
And so much of the Governor's estimates
as relates to expenditure 'charged upon the Provincial Fund' shall not be even
submitted to the vote of the Provincial Council! And what are these items of
expenditure on which the Council may not vote?
They include the emoluments of the Governor,
charges payable in respect of loans advanced by the Central Government, and 'any
other expenditure declared by the Constitution or by law made by Parliament' to
be so charged!
And what are the powers of the
Provincial Council in respect of estimates of other expenditure i.e. expenditure
not regarded as 'charged on the Provincial Fund'? Such estimates shall be
presented by the Governor in the form of demands for grants to the Provincial
Council and the Provincial Council may assent, refuse to assent, or reduce the
amount of the grant. The Provincial Council
shall not have power to increase the amount of the grant demanded!
Finally,
no demand for a grant shall be made except on the recommendation of the Governor.
Furthermore,
if the President is satisfied that the financial stability of any part of Sri
Lanka is threatened, he may make a declaration to that effect.
And
during the period of such Proclamation, the President may give directions to
the Governor of a Province to 'observe such canons of financial propriety as may
be specified in the directions' and give 'such other directions as the President
may deem necessary.'
And, notwithstanding anything in the
Constitution, any such direction may include a
provision requiring the reduction of salaries of all or any class of persons
serving in the Province and a provision requiring all statutes providing for
payment into or out of the Provincial Fund to be reserved for the consideration
of the President.
The effective control that the Governor and the Central Government exercises
on the finances of the Province is well nigh total.
The powers of the Provincial Councils may be
changed by a simple majority
Again, it would appear that the architects of 13th Amendment recognized that
it would be unwise to restrict their freedom of action in the years to come.
Though the Sri Lankan Constitution has been amended 12 times during the past 8
years, it was perhaps felt that the ruling Sinhala political party may not be
able to secure the requisite two thirds majority to amend the Constitution in
the years to come - after all it may not be possible for the ruling party to
continue to postpone general elections and retain its two thirds majority in
Parliament by securing a simple majority of votes cast by the Sinhala electorate
at a referendum.
It may have been felt that it was important that the Sinhala rulers should
have a free hand to provide for a changing future - a future which has now
arrived with the election of the new Sri Lankan Parliament in February 1989,
where President Premadasa's United National Party no longer commands a two
thirds majority.
It was not without reason that the 13th
Amendment enacted that Parliament may by a
simple majority pass and amend laws to provide for the election of members
of Provincial Councils, the qualifications for membership of such Councils, the
procedure for transaction of business by a Provincial council, the salaries and
allowances of members of a Provincial Council, and 'any other matter necessary
for the purpose of giving effect to the principles' of the 13th Amendment and
for 'any matters connected with or incidental to' the 13th Amendment!
In this way, Parliament may give effect to the so called ' principles' of the
13th Amendment without being troubled with securing the two thirds majority
required for an amendment to the Constitution. It was in the exercise of these
powers that Parliament passed the Provincial Councils Act - an Act which may
itself be amended from time to time by a simple majority.
Further, other laws may be passed by the Central Parliament, by a simple
majority in respect of matters 'connected with or incidental to' those set out
in the 13th Amendment. And that which the Sri Lankan Supreme Court may rule as
being 'connected with or incidental' to the 13th Amendment may raise interesting
questions related to political expediency rather than law.
The 13th Amendment not only provides a constitutional script for a comic
opera - it also enables the Sinhala playwrights to change the script from time
to time.
13th Amendment: Constitutional sleight of
hand
The Government of India Act enacted by the British in 1935 was described by
the biographer of Subhas
Chandra Bose as 'one of history's most sophisticated attempts by an
occupying power to perpetuate its alien rule and yet appear not to do so'. The
13th Amendment to the Sri Lanka Constitution is no less sophisticated in its
efforts to perpetuate Sinhala rule of the Tamils of Eelam and yet appear not to
do so.
There are some who may describe the 13th Amendment as a constitutional
sleight of hand par excellence. But, that is to put too fine a point on the
matter. The blunt reality is that those who proclaim that the 13th Amendment is
intended to share power between the Tamil people and the Sinhala people, are, to
use a colloquialism, 'trying to pull a fast one' on the Tamil people.
Under the 13th Amendment power will continue to reside in a Sinhala dominated
Central government, within the frame of an unitary constitution. The 13th
Amendment is intended to secure a constitutional frame which will enable a
Sinhala majority to manage the Tamil people more effectively than before.
It has created Provincial Ministers who will not exercise executive power but
who will have executive power exercised 'through' them!. At the same time it has
created a Provincial Governor appointed by the Sinhala President - a Provincial
Governor who is in truth a Provincial 'Minister' who will exercise executive
power in respect of provincial matters - a Provincial Governor who is also the
administrative head of the provincial public service and who has control of the
Provincial Finance Fund.
And the 13th Amendment has created a Provincial Council without control of
planning, without control of the provincial budget, without control of police
and public order within the province, without control of disposition of state
land within the province, without control of higher education and whose
remaining meagre legislative powers are subject to the over riding will of the
Central Parliament. Finally, the provisions of the Provincial Councils Act
itself may be amended from time to time by a simple majority of members present
and voting in Parliament!
These are the basic provisions of the 13th Amendment which Prime Minister
Rajiv Gandhi's Indian Government, and now, President Premadasa's Sri Lankan
Government, seek to 'persuade' the Tamil militant movement to accept - in the
interests of the Tamil people!
Prime Minister Rajiv Gandhi declared at a public meeting in Tamil Nadu on the
5th of August 1988 that 'it was unfortunate that the Tamils of Sri Lanka had not
yet got the benefits of devolution of power because of LTTE intransigence. Other
provinces in that country now enjoyed greater financial and police powers for
dealing with law and order situations, thanks to the Indo Sri Lanka Accord
signed last year. But the Northern and Eastern Provinces were not.' He went on:
"The LTTE must demonstrate its sincerity before we can even think of talks
of cease-fire at all. This is the time for moral courage and political
courage and not for bullets and bombs. The LTTE should face the elections
with courage and moral power." (Hindu: International Edition, 13th August
1988)
13th Amendment fails to address central
issues of the Tamil national struggle
But the constitutional reality of the 13th Amendment is that the so called
'democratic electoral process' in which the Tamil people have been invited to
participate refuses to address itself to the central issues of the Tamil
national liberation struggle.
The 13th Amendment will do nothing to share executive power with the Tamil
people because such power will continue to be vested in the President and in
his servants.
It will do nothing to secure an equitable allocation of financial resources
to Tamil areas because such allocation will continue to be determined at the
discretion of a Sinhala dominated Central Government.
It will do nothing to prevent continued state aided Sinhala colonisation of
the Northern and Eastern Provinces because the disposition of state land
will be in the hands of a Sinhala dominated Central Government.
The 13th Amendment will do nothing to prevent standardisation of admission
to Universities, because higher education is a subject excluded from the
Provincial List.
The 13th Amendment will do nothing to control the abuse of police powers
because the subject of 'Police and Public Order' in the Provinces will
continue to be effectively vested in a Sinhala dominated Central Government.
The 13th Amendment will do nothing to prevent the operation of the
Prevention of Terrorism Act whose provisions were described by the
International Commission of Jurists as a 'blot on the statute book of any
civilised country' because this too will be within the competence of a
Sinhala dominated Central Government.
The 13th Amendment will do nothing to prevent the operation of emergency
regulations which enable Tamils to be killed and disposed of without a post
mortem inquiry and which regulations have been condemned by Amnesty
International as an encouragement to indulge in extra judicial killings.(Amnesty
International Report, 1984)
The 13th Amendment will do nothing to
prevent the operation of the 6th Amendment to the Constitution which
according to the International Commission
of Jurists, violated the right to freedom of expression.
On the contrary, the 13th Amendment will require members of the Provincial
Council to take their oaths under the 6th Amendment and acquiesce in and
sanction such violation.
And the 13th Amendment will do nothing to energise the Tamil people to work
for the rehabilitation of their homeland, because it refuses to recognize the
existence of the Tamil people as a people with a homeland.
Denies homeland to the Tamils of Eelam
Nowhere is the refusal to recognize the existence of the Tamils of Eelam as a
people with a homeland reflected more clearly than in the provisions of the
Provincial Councils Act in respect of the merger of the Northern and Eastern
Province.
The Indo Sri Lanka Accord
signed by Prime Minister Rajiv Gandhi of India and President J.R. Jayawardene of
Sri Lanka, on the 29th of July 1987, acknowledged that the Northern and Eastern
Province 'have been areas of historical habitation' of the Tamils in the island
of Sri Lanka. (Preamble to Indo Sri Lanka Accord, July 1987)
It was an acknowledgment which was watered down by the additional statement
that the Tamils 'have at all times hitherto lived together in this territory
with other ethnic groups'.
Be that as it may, the Indo Sri Lanka Accord was right to recognize that the
togetherness of the Tamil people had grown, hand in hand, with the growth of
their homelands in the North and East of Sri Lanka, where they lived together,
worked together, communicated with each other, founded their families, educated
their children, and also sought refuge, from time to time, from physical attacks
elsewhere in Sri Lanka.
The Accord was right to recognize that without an identifiable homeland the
Tamils in Sri Lanka would not have become a people with a separate culture and a
separate language and that without an identified homeland they will cease to
exist as a people in the future. And in the words of Malcolm Shaw in Title to
Territory in Africa:
"Modern nationalism in the vast majority of cases points to a deep, almost
spiritual connection between land and people. This can be related to the
basic psychological needs of man in terms of the need for security and a
sense of group identity... the concern for the preservation of habitat
exists as a passionate reflex in all human communities. territory is the
physical aspect of the life of the community and therefore reflects and
conditions the identity of that community."
After all, it was this which was partially recognized both by the 1972
Constitution and by the 1978 Constitution when these Constitutions made
provision for the use of the Tamil language in the Northern and Eastern
Provinces. It was this which was recognized by Professor Virginia Leary in her
Report on the Ethnic Conflict in Sri Lanka in 1981 when she declared that the
Tamils could be considered to a people with a distinct language, culture and to
an extent, a defined territory. (Professor Virginia Leary, ICJ Report,
1981 at page 69)
Therefore the signatories to the Indo Sri Lanka Accord were right in taking
the view that there was no need to hold a referendum before declaring that the
Northern and Eastern Provinces 'have been areas of historical habitation' of the
Tamil people.
And resorts to the subterfuge of a
referendum
But though the Accord recognized the Northern and Eastern Provinces as areas
of historic habitation of the Tamil people, the 13th Amendment and the
Provincial Councils Act refused to translate that recognition into
constitutional reality.
The constitutional comic opera was continued in the special acting style of
the 13th Amendment - that which was seemingly given with one hand was taken with
other.
The Provincial Councils Act provided that the President may by Proclamation
merge the Northern and Eastern Provinces if he is satisfied that all arms and
ammunition held by the militant groups have been surrendered and there has been
a cessation of acts of violence. The Act then went on to provide for a
referendum to be held in the Eastern Province to determine whether the people of
the Eastern Province want the Eastern Province to be continued to be linked with
the Northern Province.
If the people of the Eastern Province vote against a linkage, then the merger
will be terminated. But if the people of the Eastern Province vote for a linkage
with the Northern Province, a poll shall not be required to determine the wishes
of the people in the Northern Province. The Provincial Councils Act rightly
assumes that the Tamil people living in the Northern Province want a merger of
the Northern and Eastern Province and that a poll would be superfluous. But it
refuses to accept that the Tamils living in the Eastern Province are also a part
of the same Tamil people.
A Machievellian provision intended to secure
that the merger is temporary
The reason for this Machiavellian provision is not too far to seek. A few
days before the signing of the Accord, President Jayawardene stated to the
National Executive Committee of the ruling United National Party:
"...Only one thing has to be considered. That is a temporary merger of the
North and East. A referendum will be held before the end of next year on a
date to be decided by the President to allow the people of the East to
decide whether they are in favour or not of this merger. The decision will
be by a simple majority vote...
In the Eastern Province with Amparai included there are 33% Muslims, 27%
Sinhalese and the balance 40% Tamils. Of these Tamils there are two
categories. More than half of them are Batticaloa Tamils and the rest are
Jaffna Tamils. Then, if the Jaffna Tamils form 20%, then I think that 80%
are opposed to such a merger.
Mr. Devanayagam and Mr. Majeed (members of President Jayawardene's Cabinet,
one being a Tamil and the other a 'Muslim' Tamil) have told me so. Then if
the referendum is held by the Central government and the approval of those
who return to the East is sought, I think a majority will oppose it. Then
the merger will be over. What do we gain by this temporary merger, the
President asked and said that it would see the end of the terrorist
movement..." (Sri Lanka News, 29 July 1987)
The enthusiastic recognition of the Northern and Eastern Province as the
areas of 'historical habitation' of the Tamils was apparently a 'temporary'
enthusiasm confined to the preamble of the Accord.
The merger of the Northern and Eastern Province was a temporary merger
intended to serve an immediate purpose and get over a pressing immediate
difficulty - namely the need to 'see the end' of that which President
Jayawardene chose to describe as the 'terrorist movement' in his address to his
Executive Committee, and that which he himself had acknowledged as the
'militant' movement in the Indo Sri Lanka Accord which he signed on the 29th of
July 1987.
At a press conference immediately after the Accord was signed, President
Jayawardene confirmed that at the polls in the Eastern Province he would
campaign against the merger.(Sri Lanka News 12 August 1987)
As President Jayawardene was careful to point out to the Executive Committee
of the ruling Party, included in the Eastern Province was the Amparai District.
That which he did not state and that which his listeners were well aware was
that during the past fifty years, state sponsored colonisation had contributed
to considerable increases in the Sinhala population in the Amparai District.
On the one hand the Sri Lankan government sought to use the vote of recently
settled Sinhala colonists to prevent the merger and this led to the concerted
efforts of the Sri Lankan Government to bring in more Sinhala settlers into the
Eastern Province in the immediate aftermath of the Accord.
On the other hand the Sri Lankan government sought to campaign on the basis
of dividing the Tamil people into Jaffna Tamils and Batticaloa Tamils, and into
Muslim Tamils and non Muslim Tamils.
And, finally, the Sri Lankan Government ensured that the Provincial Councils
Act may itself be amended by the Central Parliament by a simple majority and in
this way the result of a referendum in favour of a merger, may in any event, may
be nullified at a suitable and convenient time - after the surrender of arms.
The legislative provisions for the merger of the Northern and Eastern
Provinces constitute a subterfuge - an exercise in double speak intended to
confuse not only the Tamil people but also an international audience
increasingly concerned with the denial of the basic and fundamental rights of
the Tamil people.
But beneath the cosmetics, the underlying political reality of the 13th
Amendment was that it refused to recognize the Tamils of Eelam as a people - and
it refused to recognize the existence of the Tamil homeland where the identity
of the Tamil people had in fact grown.
The architects of the 13th Amendment were unable and unwilling to break away
from the path trodden by successive Sinhala governments which have sought to
divide the Tamil people into smaller units and so eventually assimilate and
'integrate' them into a homogeneous Sinhala nation - an assimilating path which
had led to confrontation and which had culminated in the armed struggle of the
Tamil people against that which
they rightly regarded as genocide.
Refuses to recognise the political reality
of the Tamil Nation
The 13th Amendment seeks to resolve the political conflict in Sri Lanka
without facing up to the existential political reality that there exist in Sri
Lanka today two nations - the Tamil nation and the Sinhala nation. To those who
continue to ask what is a nation
the time has come to declare with Rupert Emerson:
"The simplest statement that can be made about a nation is that it is a
body of people who feel that they are a nation; and it may be that when all
the fine spun analysis is concluded this will be the ultimate statement as
well"
In the matter of fact words of Professor Seton-Watson:
"A nation exists when a significant number of people in a community
consider themselves to form a nation, or behave as if they formed one. It is
not necessary that the whole of the population should so feel, or so behave,
and it is not possible to lay down dogmatically a minimum percentage of a
population which must be so affected. When a significant group holds this
belief, it possesses 'national consciousness'." (Seton-Watson, Nation and
States, 1977)
'When five percent of a society accepts a new idea, it is embedded in its
population. As the idea spreads and reaches 20% of the population, it
becomes unstoppable'.
(Ross Smyth, Transnational Perspectives, 1985)
Today, the 'idea' of the Tamil nation has become so embedded amongst the
Tamils of Eelam, that it is no longer 'stoppable'. It is no longer stoppable
because it is embedded in the direct personal feelings and the material
interests of large sections of the Tamil people,
whether they be public servants deprived of increments and promotions in
consequence of the Sinhala Only Act,
whether they be expatriate Tamil professionals who had left Ceylon in the
face of a growing discrimination so that they may lead a life not of luxury
but of dignity,
whether they be those who continued to suffer discrimination at their work
place because they had nowhere else to go, whether they be students deprived
of admission to Universities because of standardisation,
whether they be parents who saw no future for their children's advancement,
whether they be farmers who were forced to contend with an 'open economic'
policy which granted them no protection, whether they be businessmen who had
their businesses burnt and destroyed by Sinhala goon squads,
whether they be those who had their kith and kin killed and raped and their
homes looted not only by the Sri Lankan security forces but also by the so
called Indian Peace Keeping Force,
whether they be those who were rendered homeless and who lived in refugee
camps in their own 'homelands',
whether they be those who had left their homelands in fear and who had
sought refugee in Tamil Nadu or as wandering nomads in foreign lands,
whether they be those who continued to remain in Sri Lanka and live in fear
because they were Tamils
and whether they be those who said that 'enough was enough' and who would
not take it lying down any more and who were ready to give their lives in an
armed struggle.
It was of such an idea that Sri
Aurobindo wrote eloquently in 1907:
"The idea or sentiment is at first confined to a few men whom their
neighbours and countrymen ridicule as lunatics or hare-brained enthusiasts.
But is spreads and gathers adherents who catch the fire of the first
missionaries and creates its own preachers and then its workers who try to
carry out its teachings in circumstances of almost paralysing difficulty.
The attempt to work brings them into conflict with the established power
which the idea threatens and there is persecution. The idea creates it
martyrs.
And in martyrdom there is an incalculable spiritual magnetism which works
miracles. A whole nation, a whole world catches the fire which burned in a
few hearts; the soil which has drunk the blood of the martyr imbibes with it
a sort of divine madness which it breathes into the heart of all its
children, until there is but one overmastering idea, one imperishable
resolution in the minds of all beside which all other hopes and interests
fade into insignificance an until it is fulfilled, there can be no peace or
rest for the land or its rulers.
It is at this moment that the idea begins to create its heroes and
fighters, whose numbers and courage defeat only multiplies and confirms
until the idea militant has become the idea triumphant. Such is the history
of the idea, so invariable in its broad lines that it is evidently the
working of a natural law" (Sri Aurobindo, Bande Mataram, June 1907)
The Tamil Nation in Eelam is more than an
idea
The Tamil nation is an idea - and it is more. Because they err who conceive
the Tamil nation as a mere intellectual platform. It would be lifeless if it
were. Neither is Tamil nationalism the expression of emotion alone. It would not
be sustained for long if that were true. Nor is it a matter merely of a people
securing food clothing and shelter and their material conditions of existence.
Because, that would deny to Tamil nationalism its rich cultural heritage.
Tamil nationalism is all these - and more. It is all these together as an
integrated whole - an integrated whole which is greater than the sum of its
constituent parts - and an integrated whole which has taken shape through a
process of opposition and differentiation during a period of more than two
thousand years. Every inside has an outside.
And it was continued Sinhala discrimination during a time period of several
decades, which consolidated the growth of the Tamil nation. That which was
treated separately, became separate. It is when one begins to understand all
this that one will also understand the sacrifices and the suffering undergone by
the Tamil people and the militant movement in the name of the Tamil nation -
understand the answering response from thousands of Tamils and understand the
increasing togetherness of the Tamil people. And it is when one understands all
this that one will also understand the political reality of the Tamil nation and
its power to direct and influence the conduct of thousands.
Thimpu Declaration was the joint and
unanimous will of the Tamil people
However, the Tamil people are not chauvinists - they do not take an
exaggerated view of nationalism. The Tamils of Eelam know that no nation is an
island. They know that nations live together - the question is: on what terms?
And the first step for determining the terms on which two nations may live
together is for each nation to recognize the existence of the other. The
1985 Thimpu Declaration expressed the joint and unanimous will of the Tamil
people and set out a reasoned framework within which the Tamil nation and the
Sinhala nation may live in Sri Lanka:
"It is our considered view that any meaningful solution to the Tamil
national question must be based on the following four cardinal principles -
1. recognition of the Tamils of Ceylon as a nation or nationality 2.
recognition of the existence of an identified homeland for the Tamils in
Ceylon 3. recognition of the right of self determination of the Tamil nation
4. recognition of the right to citizenship and the fundamental rights of all
Tamils who look upon the island as their country."
"Different countries have fashioned different systems of governments to
ensure these principles. We have demanded and struggled for an independent
Tamil state as the answer to this problem arising out of the denial of these
basic rights of our people... However, in view of our earnest desire for
peace, we are prepared to give consideration to any set of proposals, in
keeping with the above-mentioned principles, that the Sri Lankan government
may place before us."
The Tamil people
recognized the existence of the Sinhala nation. The question they asked was
whether the Sinhala people were ready and willing to recognize the existence of
the Tamil nation. And in the end, nothing exemplifies the intellectual and moral
dishonesty of Sinhala chauvinism more than its continued efforts to masquerade
as a 'Sri Lankan nationalism' by denying the existence of not only the Tamil
nation but also the Sinhala nation in Sri Lanka.
Constitutional script for a comic opera
The 13th Amendment pretends that the Tamil nation does not exist. It denies
to the Tamil people the right to sit as equals with the Sinhala people and
determine the political structure within which the two people may live in
equality. But, the Tamil nation will not quietly go away and disappear from the
political arena merely because the Indian government and the Sri Lankan
government refuse to recognize its existence.
The words of a brave young Tamil,
Selvarajah Yogachandran, in a musty court house in Colombo when he was
sentenced to death in 1982 continue to be relevant - 'You may take my life, but
for the life of each Kuttimuni you take, there will be ten more who will be
born'.
Neither will the Tamil nation disappear from the world arena, merely because
today both the Soviet Union and the United States have supported an Indo Sri
Lanka Accord which fails to openly recognize the political reality of Tamil
nationalism. Both the Soviet Union and the United States may take the view today
that the stability of the Indian region will be secured by supporting Prime
Minister Rajiv Gandhi's government and President Premadasa's Sri Lankan
government.
But Prime Minister Rajiv Gandhi's government will secure stability in the
Indian region only if it has the strength to openly recognize that both India
and Sri Lanka are multi national states - and only if it uses that strength to
put into place constitutional structures which reflect that political reality.
But it would seem that both the Sri Lankan Government and the Indian
Government lack the strength to deal with the Tamil nation on equal terms. In
their fear they hug each other and proclaim loudly that the Tamil nation does
not exist. That which they pretend not to see, continues to haunt them.
It was said of the Bourbons that they forgot nothing and learnt nothing. It
would appear that those who direct the affairs of the Indian Government and the
Sri Lankan Government remember nothing and learn nothing.
If the French revolutionaries were offered cake instead of bread, the Tamils
of Eelam have been offered form without content. The right place for the truly
comic Provincial Council and its Board of Ministers with its comic functions,
created by the 13th Amendment, is an opera by Gilbert and Sullivan and not a
Tamil Eelam seething with discontent and convulsed with conflict.
Tamil nationalism cannot be snuffed out. It can be reasoned with. The 13th
Amendment, however, seeks to create a Constitutional frame within which the
Sinhala people may rule the Tamils of Eelam more effectively by creating and
nurturing a class of Tamils dependent on the patronage of a Sinhala dominated
Central Government for their political and perhaps, even their physical,
survival. The 13th Amendment denies reason to the Tamils of Eelam. But reason
denied will nevertheless prevail - and the time will come when the 13th
Amendment will find itself consigned to the dustbin of history together with its
architects.
Notes
(1) 13th Amendment, Article
154B(2):
"The Governor shall be appointed by the President by warrant
under his hand, and shall hold office, in accordance with Article 4(b), during
the pleasure of the President"
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(2) Sri Lanka Constitution,
1978 , Article 4:
"The Sovereignty of the People shall be exercised and enjoyed
in the following manner:- (a)legislative power of the People shall be exercised
by Parliament, consisting of elected representatives of the People and by the
People at a Referendum; (b)the executive power of the People, including the
defence of Sri Lanka, shall be exercised by the President of the Republic
elected by the People;"
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(3) 13th Amendment, Article
154C:
"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 for which that Provincial Council is established,
either directly or through Ministers of the Board of Ministers, or through
officers subordinate to him, in accordance with Article 154F"
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(5) Provincial Councils
Act, Section 32(1):
"Subject to the provisions of any other law the appointment,
transfer, dismissal and disciplinary control of officers of the provincial
public service of each Province is hereby vested in the Governor of that
Province."
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(6) Provincial Councils
Act, Section 32(3):
"The Governor shall provide for and determine all matters
relating to officers of the provincial public service, including the formulation
of schemes of recruitment and codes of conduct for such officers, the principles
to be followed in making promotions and transfers, and the procedure for the
exercise and the delegation of the powers of appointment, transfer, dismissal
and disciplinary control of such officers. In formulating such schemes of
recruitment and codes of conduct, the Governor shall, as far as practicable,
follow the schemes of recruitment prescribed for corresponding offices in the
public service and the codes of conduct prescribed for corresponding offices in
the public service and the codes of conduct prescribed for officers holding
corresponding offices in the public service."
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(7) Provincial Councils
Act, Sections 32(2), 33(1):
32(2): "The Governor of a Province may from time to time,
delegate his powers of appointment, transfer, dismissal and disciplinary control
of officers of the provincial public service to the Provincial Public Service
Commission of that Province." 33(1): "There shall be a Provincial Public Service
Commission for each Province which shall consist of not less than three persons
appointed by the Governor of that Province. the Governor shall nominate one of
the members of the Commission to be the Chairman."
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(8) Provincial Councils
Act, Section 33(8):
"The Governor of a Province shall have the power to alter,
vary or rescind any appointment, order of transfer or dismissal or any other
order relating to a disciplinary matter made by the Provincial Public Service
Commission of that Province."
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(9) 13th Amendment, Article
154F(4):
"The Governor shall appoint as Chief Minister, the member of
the Provincial Council constituted for that Province, who in his opinion is best
able to command the support of a majority of the members of that Council:
Provided that where more than one half of the members elected to a Provincial
Council are members of one political party, the Governor shall appoint the
leader of that political party in the Council, as the Chief Minister.
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(10) 13th Amendment,
Article 154F(5):
"The Governor shall, on the advice of the Chief Minister,
appoint from among the members of the Provincial Council constituted for that
Province, the other Ministers."
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(11) 1983 ICJ Report: Sri
Lanka, A Mounting Tragedy of Errors p63:
"The freedom to express political opinions, to seek to
persuade others of their merits, to seek to have them represented in Parliament,
and thereafter to seek to persuade Parliament to give effect to them, are all
fundamental to democracy itself. These are precisely the freedoms which Article
of the Covenant recognizes and guarantees - and, in respect of advocacy for the
establishment of an independent Tamil State in Sri Lanka, those which the Sixth
Amendment is designed to outlaw. It therefore appears tome plain that this
enactment constitutes a clear violation by Sri Lanka of its obligations in
international law under the Covenant."
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(12) 13th Amendment,
Article 154F(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."
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(13) 13th Amendment,
Article 154B(11)(a):
"It shall be the duty of the Chief Minister of every Province
- (a) to communicate to the Governor of the Province all decisions of the Board
of Ministers relating to the administration of the affairs of the Province and
the proposals for legislation."
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(14) 13th Amendment,
Article 154B(11)(b):
"It shall be the duty of the Chief Minister of every Province
- (b) to furnish such information relating to the administration of the affairs
of the Province and proposals for legislation as the Governor may call for."
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(15) Provincial Councils
Act, Section 15(1):
"The Governor shall make rules for the allocation of business
among the Ministers in so far as it is not business with respect to which the
Governor is by, or under, the Constitution required to act in his discretion."
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(16) 13th Amendment,
article 154B(10)(a):
"The Governor may address the Provincial Council and may for
that purpose require the attendance of members."
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(17) 13th Amendment,
Article 154K:
"Where the Governor or any Provincial Council has failed to
comply with, or give effect to, any directions given to such Governor or such
Council under this Chapter of the Constitution, it shall be lawful for the
President to hold that a situation has arisen in which the administration of the
Province cannot be carried on in accordance with the provisions of the
Constitution."
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(18) 13th Amendment,
Article 154L(1):
"If the President on receipt of a report from the Governor of
the Province or otherwise is satisfied that a situation has arisen in which the
administration of the Province cannot be carried on in accordance with the
provisions of the Constitution, the President may by Proclamation assume to
himself all or any of the functions of the administration of the Province and
all or any of the powers vested in or exercisable by, the Governor or any body
or authority in the Province other than the Provincial Council; (b) declare that
the powers of the Provincial Council shall be exercisable by or under the
authority of Parliament; (c) make such incidental and consequential provisions
as appear to the President to be necessary or desirable for giving effect to the
objects of the Proclamation; Provided that nothing in this paragraph shall
authorize the President to assume to himself any of the powers vested in or
exercisable, by any Court."
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(19) 13th Amendment,
Article 154F(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."
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(20) 13th Amendment,
Article 154F(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 shall be final, and the
validity of anything done by the Governor shall not be called in question in any
Court on the ground that he ought or ought not to have acted on his discretion.
The exercise of the Governor's discretion shall be on the President's
direction."
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(21) 13th Amendment,
Article 154F(3):
"The question whether any, and if so what advice was tendered
by the Ministers to the Governor shall not be inquired into in any Court."
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(22) 13th Amendment,
Article 154R(1):
"There shall be a Finance Commission consisting of - (a) the
Governor of the Central Bank of Sri Lanka (b) the Secretary to the treasury; and
(c) three other members to represent the three major communities each of whom
shall be a person who has distinguished himself, or held high office in the
field of finance, law, administration, business or learning."
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(23) 13th Amendment,
Article 154R(3):
"The Government shall, on the recommendation of and in
consultation with, the Commission, allocate from the Annual Budget, such funds
as are adequate for the purpose of meeting the needs of the Provinces."
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(24) 13th Amendment,
Article 154R(5):
"It shall be the duty of the Commission to make
recommendations to the President as to - (a) the principles on which such funds
as are granted annually by the Government for the use of Provinces, should be
apportioned between the various Provinces; and (b) any other matter referred to
the Commission by the President relating to Provincial Finance."
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(25) 13th Amendment,
Article 154R(7):
"The President shall cause every recommendation made by the
Finance Commission under this Article to be laid before Parliament, and shall
notify Parliament as to the action taken ."
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(26) Provincial Councils
Act, Section 19(1):
"There shall be a Provincial Fund for each Province into which
shall be paid - (a) the proceeds of all taxes imposed by the Provincial Council
of that Province; (b) the proceeds of all grants made to such Provincial Council
in respect of the Province, by the Government of Sri Lanka; (c) the proceeds of
all loans advanced to the Provincial Council from the Consolidated Fund of Sri
Lanka; and (d) all other receipts of the Provincial Council."
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(27) Provincial Councils
Act, Section 24(1):
"A statute in relation to any subject with respect to which
the Provincial Council has power to make statutes, shall not be introduced into,
or moved in, a Provincial Council except on the recommendation of the Governor,
if such statute makes provision for any of the following matters, namely:- (a)
the imposition, abolition, remission, alteration or regulation of any tax; (b)
the amendment of ay law with respect to any financial obligations undertaken, or
to be undertaken, in respect of the administration of the Province; (c) the
appropriation of moneys out of the Provincial Fund of the Province; (d) the
declaring of any expenditure to be expenditure charged on the Provincial Fund of
the Province or increasing the amount of any such expenditure; (e) the receipt
of money on account of the Provincial Fund or the custody or issue of such
money."
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(28) Provincial Councils
Act, Section 19(5):
"The custody of the Provincial Fund of a Province, the payment
of moneys into such Fund, and all other matters connected with, or ancillary to,
those matters shall be regulated by rules made by the Governor."
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(29) 13th Amendment,
Article 154L(1):
"If the President on receipt of a report from the Governor of
the Province or otherwise is satisfied that a situation has arisen in which the
administration of the Province cannot be carried on in accordance with the
provisions of the Constitution, the President may by Proclamation - (a) assume
to himself all or any of the functions of the administration of the Province and
all or any of the powers vested in or exercisable by, the Governor or any body
or authority in the Province other than the Provincial Council; (b) declare that
the powers of the Provincial Council shall be exercisable by or under the
authority of Parliament; (c) make such incidental and consequential provisions
as appear to the President to be necessary or desirable for giving effect to the
objects of the Proclamation; Provided that nothing in this paragraph shall
authorize the President to assume to himself any of the powers vested in or
exercisable, by any Court."
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(30) 13th Amendment,
Article 154L(6):
"A Proclamation under this Article shall be conclusive for all
purposes and shall not be questioned in any Court and no Court or Tribunal shall
inquire into or pronounce on, or in any manner call in question such
Proclamation or the grounds for making thereof."
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(31) 13th Amendment,
Clause 2 of Appendix I:
"The I.G.P. shall be the head of the Sri Lanka Police Force.
The Sri Lanka Police Force shall be divided into - (a) the National Division
(including Special Units); and (b) a Provincial Division for each Province."
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(32) 13th Amendment,
Clause 6 of Appendix I:
"The I.G.P. shall appoint a D.I.G. for each Province with the
concurrence of the Chief Minister of the Province. However, where there is no
agreement between the Inspector General of police and the Chief Minister, the
matter will be referred to the President, who after due consultations with the
Chief Minister, shall make the appointment."
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(33) 13th Amendment,
Clause 4 of Appendix I:
"Recruitment to each Provincial Division shall be made by a
Provincial Police Commission composed of three members, namely (a) the D.I.G. of
the Province (b) a person nominated by the Public Service Commission in
consultation with the President; and (c) a nominee of the Chief Minister of the
Province."
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(34) 13th Amendment,
Clause 9.2 of Appendix I:
"The Government of Sri Lanka shall be responsible for the
training of all recruits to and of all Divisions of the Sri Lanka Police Force.
The President may, where he considers it necessary, provide for alternative
training for members of any Provincial Division."
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(35) 13th Amendment,
Clause 12.1 of Appendix I
"The Provincial Division shall be responsible for the
preservation of public order within the Province and the prevention, detection
and investigation of all offences (except the offences specified in the
Schedule) and subject to the powers of the Attorney General in terms of the
Criminal Procedure Act, the institution of prosecutions in respect of such
offences."
"The National Division of the Sri Lanka Police shall be
responsible for the prevention, detection, and investigation of all offences
specified in the Schedule and subject to the powers of the Attorney General in
terms of the Criminal Procedure Act, for the institution of prosecutions in the
relevant Courts in respect of such offences."
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(36) 1983 ICJ Report: Sri
Lanka, A Mounting Tragedy of Errors p33:
"These provisions (of the Prevention of Terrorism Act) are
quite extraordinarily wide. No legislation conferring even remotely comparable
powers is in force in any other free democracy operating under the Rule of Law,
however troubled it may be by politically motivated violence. Indeed, there is
only one known precedent for the power to impose restriction Orders under
Section 11 of the Sri Lankan PTA, and that - as Professor Leary rightly pointed
out in her Report - is the comparable legislation currently in force in South
Africa...I am naturally reluctant to re-open the wound, but I have no choice but
to endorse Professor Leary's conclusion. Such a provision is an ugly blot on the
statute book of any civilised country."
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(37) 13th Amendment,
Clause 11 of Appendix I:
"All Police Officers serving in units of the National Division
and the Provincial Divisions in any Division shall function under the direction
and control of the D.I.G. of such Province."
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(38) 13th Amendment,
Clause 11.1 of Appendix I:
"The D.I.G. of the province shall be responsible to and under
the control of the Chief Minister thereof in respect of the maintenance of
public order in the Province and the exercise of police powers in the Province
as set out in this Schedule."
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(39) 13th Amendment,
Article 154G(1):
"Every Provincial Council may, subject to the provisions of
the Constitution, make statutes applicable to the Province for which it is
established, with respect to any matter set out in List I of the Ninth Schedule
8 here in after referred to as 'the Provincial Council List')."
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(40) 13th Amendment,
Article 154G(11):
"Notwithstanding anything in paragraph (3) of this Article,
Parliament may make laws, otherwise than in accordance with the procedure set
out in that paragraph, in respect of any matter set out in the Provincial
Council List for implementing any treaty, agreement, or convention with any
other country or countries or any decisions made at an international conference,
association or other body."
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(41) 13th Amendment,
Article 154S(5),155(3A):
"Article 155 of the Constitution is hereby amended by the
insertion, immediately after paragraph (3) of that Article, of the following new
paragraph:- (3A) Nothing in the preceding provisions of this Constitution shall
be deemed to prohibit the making of emergency regulations, under the Public
Security Ordinance or the law for the time being in force relating to public
security, with respect to any matter set out in the Ninth Schedule or having the
effect of overriding amending or suspending the operation of a statute made by a
Provincial Council."
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(42) Provincial Councils
Act, Section 25(1):
"The Governor of the 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 the estimated receipts and expenditure of the Province for that
year, in this Part referred to as the 'annual financial statement'."
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(43) Provincial Councils
Act, Section 26(1):
"So much of the estimates as relates to expenditure charged
upon the Provincial Fund of the Province shall not be submitted to the vote of
the Provincial Council, but nothing in this subsection shall be construed as
preventing the discussion in the Provincial Council of any of these estimates."
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(44) Provincial Councils
Act, Section 26(2):
"So much of the said estimates as relates to other expenditure
shall be submitted in the form of demands for grants to the Provincial Council,
and the Provincial Council shall have power to assent, or to refuse to assent,
to any demand, or to assent to any demand, subject to a reduction of the amount
specified therein."
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(45) Provincial Councils
Act, Section 26(3):
"No demand for a grant shall be made except on the
recommendation of the Governor."
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(46)
13th Amendment, Article 154N(1):
"If the President is satisfied that a situation has arisen
whereby the financial stability or credit of Sri Lanka or of any part of the
territory is threatened, he may by Proclamation make a declaration to that
effect."
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(47)
13th Amendment, Article 154N(3):
"During the period of any such Proclamation as is mentioned in
paragraph(1) is in operation, the President may give directions to any Governor
of a Province to observe such canons of financial propriety as may be specified
in the directions, and to give such other directions as the President may deem
necessary and adequate for the purpose."
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(48)
13th Amendment, Article 154N(4):
"Notwithstanding anything in the Constitution, any such
direction may include
(a) a provision requiring the reduction of salaries and
allowances of all or any class of persons serving in connection with the affairs
of the Province; (b) a provision requiring all statutes providing for payments
into or out of a Provincial Fund to be reserved for the consideration of the
President after they are passed by the Provincial Council."
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(49)
13th Amendment, Article 154Q:
"Parliament shall by law provide for:- (a) the election of
members of Provincial Councils and the qualifications for membership of such
Councils; (b) the procedure for transaction of business by every such Council;
(c) the salaries and allowances of members of Provincial Councils; and (d) any
other matter necessary for the purpose of giving effect to the principles or
provisions of this Chapter and for any matters connected with or incidental; to
the provisions of this Chapter."
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(50) 1983 ICJ Report: Sri
Lanka, A Mounting Tragedy of Errors p63:
"The freedom to express political opinions, to seek to
persuade others of their merits, to seek to have them represented in Parliament,
and thereafter to seek to persuade Parliament to give effect to them, are all
fundamental to democracy itself. These are precisely the freedoms which Article
of the Covenant recognizes and guarantees - and, in respect of advocacy for the
establishment of an independent Tamil State in Sri Lanka, those which the Sixth
Amendment is designed to outlaw. It therefore appears tome plain that this
enactment constitutes a clear violation by Sri Lanka of its obligations in
international law under the Covenant."
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