Features
Devolution under 13A
by Neville Ladduwahetty
(This is an updated version of an article which first appeared in The Island on 16 March 2009. It is republished because of its relevance to the intention of the current government to implement the13th Amendment fully.
The defeat of the LTTE is not expected to bring a closure to Sri Lanka’s national question. It would, however, create the space for the evolution of a political solution, free of threat and intimidation. It would also create the space for the government to totally focus on issues, relating to resettlement, rehabilitation and development. Public opinion is that both issues need to be addressed, concurrently, if the military gains are to be consolidated.
The emphasis of the International Community has been on a political solution that addresses the concerns of all communities. While endorsing this view, India has been particular that such a solution should be based on the concept of devolution, as contained in the 13th Amendment, and, if necessary, beyond. These readings have influenced the deliberations of the All Party Repesentative Committee (APRC). Consequently, the approach of the APRC has been to evolve a new and, in their view, an improved version of the Provincial Council system, under the 13th Amendment.
After experiencing the functioning of the Provincial Council system, for two decades, consensus is that its costs outweigh the benefits. Irrespective of the explanations for its below expected performance, it would be worth the cost if it served its intended purpose of addressing the concerns of all the communities. Since Law and Order affects all members of all communities, it would be appropriate to assess whether the current provisions in the 13th Amendment would assure fairness and impartiality in its dealings with the Provincial Police Commissions.
Provincial Police Commission (PPC)
Appendix I of the Provincial Council List (List I of the Ninth Schedule of the 13th Amendment) describes the devolved powers, relating to Law and Order.
According to Clause 4, the PPC is to consist of three members: the D.I.G of the Province, a person nominated by the Public Service Commission, in consultation with the President, and a nominee of the Chief Minister of the Province.
Clause 6 states: “The I.G.P shall appoint the 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 consultation with the Chief Minister, shall make the appointment.”
Clause 11.1 states: “The D.I.G. shall be responsible to and under the control of the Chief Minister thereof in respect of the maintenance of public order in the Province…”.
Thus, in addition to the D.I.G. being under the control of the Chief Minister, two out of two members of the PPC would in all likelihood have political affiliations which would make them lean towards the “interests” of the Chief Minister. To expect fairness and impartiality under such provisions is to be naïve. In the real world, the tendency for the PPC, as presently constituted, would be to encourage a high degree of partiality in favour of the Chief Minister’s interests, not to mention the interests of his/her loyalists, as well. While attempts are being made to depoliticize Presidential powers, through the 17th Amendment, and Independent Police Commission, provisions in the 13th Amendment would not deter the politicization of issues relating to Law and Order. This is a serious anomaly that needs to be corrected. However, the task is a daunting one because of the inbuilt procedural labyrinth.
Amendments to the 13th Amendment
Any amendment to provisions in the 13th Amendment requires conformance to the procedures set out in Article 154G:
“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 1…”
No Bill for the amendment or repeal of the provisions of this Chapter or the Ninth Schedule shall become law unless such Bill has been referred by the President, after its publication in the Gazette and before it is placed in the Order paper of Parliament, to every Provincial Council for the expression of its views thereon, within such period as may be specified in the reference, and –
where every such Council agrees to the amendment or repeal, such Bill is passed by a majority of the Members of Parliament present and voting; or
(b)where one or more Councils do not agree to the amendment
or repel such Bill is passed by the special majority required by Article 82.
According to the mentioned procedure, it is unlikely that a President would initiate action unless there is a public demand. This would mean that the public would have to organize themselves to give expression to such a demand. Assuming a President is convinced that an amendment is needed, the process involves drafting appropriate legislation, Gazetting it, and then circulating it to the Provincial Councils for comment. If even one out of the nine Councils objects, a 2/3 majority of the Parliament would be needed before it could become law.
Since no Provincial Council would agree to relinquish the advantages it possesses, under current provisions, as regards the composition of the PPC, one can be certain that any amendment in respect of Law and Order would require a “special majority”, meaning 2/3 of those present in Parliament voting for the amendment. The fact that it is near impossible to secure a 2/3 majority, under the proportionate representation scheme, is a fact that has to recognized and accepted. Furthermore, in the course of his determination, Justice Wanasundara stated: “Factually speaking, even the President has said recently that under the proportionate scheme, no political party would be able to secure anything more than a bare majority in the future” (Supreme Court case on The 13th Amendment to the Constitution, 1987, p. 347).
Thus, the reality is that the public may not succeed in securing the needed 2/3 majority to redress a provision that has the potential to seriously undermine its right to equality before the law when it comes to provincial matters. In such an eventuality, would not the sovereignty of the People be compromised? As stated by Justices L.H. de Alwis and H.A.G. de Silva, in their determinations: “Article 154G (2) therefore imposes a fetter on the Parliament in amending or repealing Chapter XVIIA or the Ninth Schedule and thereby abridges the Sovereignty of the People in the exercise of its legislative power by Parliament, in contravention of Article 3 and 4(a) of the Constitution” (Ibid.).
The determination of the Chief Justice and three other Justices, however, were: “…the legislative competence is not exclusive in character and is subordinate to that of Central Parliament which in terms of Article 154G (2) and 154G (3) can, by following the procedure set out therein, override the Provincial Councils. Article 154G conserves the sovereignty of Parliament in the legislative field…In our view 154G (2) and (3) do not limit the sovereign powers of Parliament. They only impose procedural restraints” (Ibid., p. 320).
There is no doubt whatsoever that “procedural constraints” imposed by 13A is a fetter to the unrestrained Legislative powers of Parliament that existed under Article 4 (a) and since Article 4 must be read with Article 3 these procedural constraints violate the sovereignty of the People whenever Parliament is unable to muster the 2/3 majority needed to amend any provision in 13A.
RECENTLY, SCOTLAND’S GENDER RECOGNITION REFORM BILL WAS VETOED BY THE U.K. GOVERNMENT BY USING SECTION 35 OF THE SCOTLAND ACT, THUS ENDORSING THE SUPREMACY OF THE U.K. PARLIAMENT OVER THAT OF SCOTLAND. THIS WAS POSSIBLE BECAUSE “PROCEDURAL RESTRAINTS”, SUCH AS THOSE THAT EXIST UNDER 13A, DO NOT EXIST UNDER DEVOLUTION IN the U.K.
Issues addressed thus far relate to amendments and repeals. 154G (3) relate to Bills in respect of any matter. Here, too, the President has to Gazette the Bill and circulate it to all Provincial Councils. If all Councils agree, the Bill is passed with a simple majority. If some disagree, a 2/3 majority is required for the Bill to become Law. On the other hand, if only some agree and only a simple Parliamentary majority is possible, the Bill would apply only to those Provincial Councils that agreed with the Bill. Would this not foster asymmetrical devolution? If one or more Provincial Councils call upon Parliament to make law on any matter, the passage of such a law, by a simple majority, would apply only to those Councils making the request. This too would foster asymmetrical devolution.
CONCLUSION
The Government is under pressure to implement the full provisions of the 13th Amendment. If Police powers, as required by the 13th Amendment, are devolved, the Law and Order situation in the country would be politicized far beyond what exists today.
Provisions, relating to Law and Order, as stated in Appendix 1 of List 1 of the 13th Amendment, was introduced in 1987. On the other hand, the need for an Independent Police Commission was introduced decades later in order to depoliticize Law and Order. Since Law and Order is central to Justice and overall security, the contradictions that exist between them need to be amended, along with the repeal of 154 G, because it is the only way the sovereignty of the People and the legislative powers of Parliament would be restored, prior to the full implementation of the 13th Amendment.
Such measures are justified because they are a byproduct of a political intervention by India, following the Indo-Lanka Accord. Real independence and the right of true self-determination require that all Sri Lankans are governed by Laws of their own making and not by what is imposed. Therefore, the Government has a moral obligation to its People to create the necessary conditions to protect the sovereignty of the People and the unfettered legislative powers of Parliament, encouraged by Section 35 of the U.K. Scotland Act.
It would not be particularly revelatory to say that the US is plagued by ‘gun violence’. It is a deeply entrenched and widespread malaise that has come in tandem with the relative ease with which firearms could be acquired and owned by sections of the US public, besides other causes.
However, a third apparent attempt on the life of US President Donald Trump in around two and a half years is both thought-provoking and unsettling for the defenders of democracy. After all, whatever its short comings the US remains the world’s most vibrant democracy and in fact the ‘mightiest’ one. And the US must remain a foremost democracy for the purpose of balancing and offsetting the growing power of authoritarian states in the global power system, who are no friends of genuine representational governance.
Therefore, the recent breaching of the security cordon surrounding the White House Correspondents’ Dinner in Washington at which President Trump and his inner Cabinet were present, by an apparently ‘Lone Wolf’ gunman, besides raising issues relating to the reliability of the security measures deployed for the President, indicates a notable spike in anti-VVIP political violence in particular in the US. It is a pointer to a strong and widespread emergence of anti-democratic forces which seem to be gaining in virulence and destructiveness.
The issues raised by the attack are in the main for the US’ political Right and its supporters. They have smugly and complacently stood by while the extremists in their midst have taken centre stage and begun to dictate the course of Right wing politics. It is the political culture bred by them that leads to ‘Lone Wolf’ gunmen, for instance, who see themselves as being repressed or victimized, taking the law into their own hands, so to speak, and perpetrating ‘revenge attacks’ on the state and society.
A disproportionate degree of attention has been paid particularly internationally to Donald Trump’s personality and his eccentricities but such political persons cannot be divorced from the political culture in which they originate and have their being. That is, “structural” questions matter. Put simply, Donald Trump is a ‘true son’ of the Far Right, his principal support base. The issues raised are therefore for the President as well as his supporters of the Right.
We are obliged to respect the choices of the voting public but in the case of Trump’s election to the highest public position in the US, this columnist is inclined to see in those sections that voted for Trump blind followers of the latter who cared not for their candidate’s suitability, in every relevant respect, and therefore acted irrationally. It would seem that the Right in the US wanted their candidate to win by ‘hook or by crook’ and exercise power on their behalf.
By making the above observations this columnist does not intend to imply that voting publics everywhere in the world of democracy cast their vote sensibly. In the case of Sri Lanka, for example, the question could be raised whether the voters of the country used their vote sensibly when voting into office the majority of Executive Presidents and other persons holding high public office. The obvious answer is ‘no’ and this should lead to a wider public discussion on the dire need for thoroughgoing voter education. The issue is a ‘huge’ one that needs to be addressed in the appropriate forums and is beyond the scope of this column.
Looking back it could be said that the actions of Trump and his die-hard support base led to the Rule of Law in the US being undermined as perhaps never before in modern times. A shaming moment in this connection was the protest march, virtually motivated by Trump, of his supporters to the US Capitol on January 6th, 2021, with the aim of scuttling the presidential poll result of that year. Much violence and unruly behaviour, as known, was let loose. This amounted to denigrating the democratic process and encouraging the violent take over of the state.
In a public address, prior to the unruly conduct of his supporters, Trump is on record as blaring forth the following: ‘We won this election and we won by a landslide’, ‘We will stop the steal’, ‘We will never give up. We will never concede. It doesn’t happen’, ‘If you don’t fight like hell, you’re not going to have a country anymore.’
It is plain to see that such inflammatory utterances could lead impressionable minds in particular to revolt violently. Besides, they should have led the more rationally inclined to wonder whether their candidate was the most suitable person to hold the office of President.
Unfortunately, the latter process was not to be and the question could be raised whether the US is in the ‘safest pair of hands’. Needless to say, as events have revealed, Donald Trump is proving to be one of the most erratic heads of state the US has ever had.
However, the latest attempt on the life of President Trump suggests that considerable damage has been done to the democratic integrity of the US and none other than the President himself has to take on himself a considerable proportion of the blame for such degeneration, besides the US’ Far Right. They could be said to be ‘reaping the whirlwind.’
It is a time for soul-searching by the US Right. The political Right has the right to exist, so the speak, in a functional democracy but it needs to take cognizance of how its political culture is affecting the democratic integrity or health of the US. Ironically, the repressive and chauvinistic politics advocated by it is having the effect of activating counter-violence of the most murderous kind, as was witnessed at the White House Correspondents’ Dinner. Continued repressive politics could only produce more such incidents that could be self-defeating for the US.
Some past US Presidents were assassinated but the present political violence in the country brings into focus as perhaps never before the role that an anti-democratic political culture could play in unraveling the gains that the US has made over the decades. A duty is cast on pro-democracy forces to work collectively towards protecting the democratic integrity and strength of the US.
The Editor-in-Chief of The Sri Lankan Anchorman, a Toronto-based monthly, celebrating Sri Lankan community life in Canada, is none other than veteran Sri Lankan journalist Dirk Tissera, who moved to Canada in 1997. His wife, Michelle, whom he calls his “tower of strength”, is the Design Editor.
According to reports coming my way, the paper has turned out to be extremely popular in Toronto.
In fact, The Sri Lankan Anchorman won a press award in Toronto for excellence in editorial content and visual presentation.
However, the buzz in the air in Canada, right now, is The Sri Lankan Anchorman’s 22nd Anniversary Gala, to be held on Friday, 12 June, 2026, at the J&J Swagat Banquet Convention Centre, in Toronto.
An action-packed programme has been put together for the night, featuring some of the very best artistes in the Toronto scene.
The Skylines, who are classified as ‘the local musical band in Toronto’, will headline the event.
Dirk Tissera and wife Michelle: Supporting Sri Lanka-Canada community events, in Toronto, since launching The Anchorman
in 2002
They have performed and backed many legendary Sri Lanka singers.
According to Dirk, The Skylines can belt out a rhythm with gusto … be it Western, Sinhala or Tamil hits.
Also adding sparkle to the evening will be the legendary Fahmy Nazick, who, with his smooth and velvety vocals, will have the crowd on the floor.
Fahmy who was a household name, back in Sri Lanka, will be flying down from Virginia, USA.
He has captivated audiences in Sri Lanka, the Middle East and North America, and this will be his fourth visit to Toronto – back by popular demand,
Cherry DeLuna, who is described by Dirk as a powerhouse, also makes her appearance on stage and is all set to stir up the tempo with her cool and easy delivery.
“She’s got a great voice and vocal range that has captivated audiences out here”, says Dirk.
Chamil Welikala, said to be one of the hottest DJs in town, will be spinning his magic … in English, Sinhala, Tamil and Latin.
Both Jive and Baila competitions are on the cards among many other surprises on the night of 12 June.
This is The Anchorman’s fifth annual dance in a row – starting from 2022, 2023, 2024 and 2025 – and both Dirk and Michelle, and The Anchorman, have always produced elegant social events in Toronto.
“We intend to knock this one out of the park,” the duo says, adding that Western music and Sinhala and Tamil songs is something they’ve always delivered and the crowd loves it.
“We have always supported Sri Lanka-Canada community events, in Toronto, since launching The Anchorman, in 2002, and we intend to keep it that way.”
No doubt, there will be a large crowd of Sri Lankans, from all communities, turning up, on 12 June, to support Dirk, Michelle and The Anchorman.
* Apple and Orange:
Blend a few apple and orange pieces together. Add to it a pinch of turmeric and one tablespoon of honey. Apply it to the face and neck and rinse off after 30 minutes. This face pack is suitable for all skin types.
According to experts, apple is one of the best fruits for your skin health with Vitamin A, B complex and Vitamin C and minerals, while, with the orange peel, excessive oil secretion can be easily balanced.
* Mango and Curd:
Ripe mango pulp, mixed with curd, can be rubbed directly onto the skin to remove dirt and cleanse clogged pores. Rinse off after a few minutes.
Yes, of course, mango is a tasty and delicious fruit and this is the mango season in our part of the world, and it has extra-ordinary benefits to skin health. Vitamins C and E in mangoes protect the skin from the UV rays of the sun and promotes cell regeneration. It also promotes skin elasticity and fights skin dullness and acne, while curd, in combination, further adds to it.
* Grapes and Kiwi:
Take a handful of grapes and make a pulp of it. Simultaneously, take one kiwi fruit and mash it after peeling its skin. Now mix them and add some yoghurt to it. Apply it on your face for few minutes and wash it off.
Here again experts say that kiwi is the best nutrient-rich fruit with high vitamin C, minerals, Omega-3 fatty acids and vitamin E, while grapes contain flavonoids, which is an antioxidant that protects the skin from free radical damage. This homemade face pack acts as a natural cleanser and slows down the ageing process.
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