Monthly Archives: June 2013

Changes to 13th Amendment ; A Summit of all Political Parties to Identify the Woods from the Trees is the Need of the Hour

By Raj Gonsalkorale
There are several factors that have, and are contributing to the muddying of the water around the 13th Amendment to the Sri Lankan constitution.

Firstly, before examining these factors, one other fact needs to be established. That is, the fact that the 13th Amendment was akin to a shot gun wedding where figuratively, at the point of a gun, a pregnant woman is forced to marry a man who either might be the father, or who is foisted on the woman to avoid the disgrace of the woman being an unmarried mother.

India forced the 13th Amendment on Sri Lanka as a solution to the ethnic problem. They probably felt they needed to do it as an honest broker and also to demonstrate their power and influence over Sri Lanka and the LTTE. It was not debated or discussed by the Sri Lankan polity. It failed to be the solution to the ethnic conflict as the agenda had been forcibly hijacked by the LTTE who had resorted to force and who did not want anything less than a separate State.

In fact the author of it, Rajiv Gandhi was killed by the LTTE for daring to introduce the amendment and move attention from their real goal of separate State. It was not supported by the TNA until after the demise of the LTTE as they feared for their lives. It was not, and is still not accepted by powerful sections of the Tamil Diaspora who still campaign and clamour for a separate State for Tamils in Sri Lanka.

So, the 13th Amendment was basically nobody’s child except India’s, although its father Rajiv Gandhi was killed by the LTTE for introducing it.

In regard to the factors that have muddied the water, firstly, for political reasons and political expediency, President Rajapaksa kept on assuring India that he will not only implement the 13th Amendment in full, but even promised he will consider a “13 Plus”, meaning, more than what the 13th Amendment provided for. Now his constituent partners, the JHU and the NFF, minor they maybe in numbers, but influential within the Rajapaksa constituency, are opposed to it, and are on vociferous record saying that they do not want the elections to the Northern provincial council under the 13th Amendment.

The TNA who never supported the 13th Amendment during the LTTE days, are now pushing for all provisions in the 13th Amendment to be implemented, including police powers and land powers. An important backdrop to this is the Tamil Diaspora lobby, sections of which are still pursuing a separate State for Tamils. This factor makes it nearly impossible for any Sri Lankan government to consider the devolution of land and police powers to province, as the specter of separatism, real or perceived, is viewed by many as being aided and abetted, especially through a provincial police.

The ability of two or more provinces to amalgamate in order to form a mega province is another factor that stands in the way of proceeding with the 13th Amendment, as happened immediately after the enactment of the 13th Amendment in 1987 when the North and Eastern provinces were combined to create a mega province that commanded 1/3 of the land mass and some say 5/6th of the sea coast.

This area was identified by the Tamil lobby, and accepted by India as the much debated traditional homeland of Tamils, although today, more Sri Lankan Tamils live outside this “traditional homeland” and the overall population of Tamils in the country is around 8% of the total population. The majority Sinhala population in the country as well as the Muslim population in the Easter province has by and large, never accepted an amalgamation of the Northern and Eastern provinces.

Sieving through the mud around the 13th Amendment, the best option appears to be the repealing of the 13th Amendment altogether and introducing a constitution that addresses some of the issues that contributed to the growth of ethnic tensions between the two major communities.

One factor that stands in the way of this option is the historical reluctance of Sinhala politicians and their constituency to consider these reasons and come up with a constitution that addresses these, as some of the reasons are very genuine and maybe accepted as the legitimate aspirations of the Tamil people.

Even amongst moderate Tamils, there is an element of distrust about the willingness on the part of the Sinhala constituency to consider what might be very legitimate concerns of the Tamil people. This distrust stands in the way of the Tamil constituency believing that the Sinhala constituency will bring in a reasonable package of political and constitutional reforms to replace the 13th Amendment in the event it is repealed.

In this regard, although acknowledging the difficult balancing act that the President has to perform, balancing national and international pressures, President Rajapaksa’s seeming backtracking on his statements to India on the 13th Amendment, and “13 Plus” assurances given to India, have not helped the current impasse and it has fuelled a degree of mistrust in the President. This is very unfortunate as many still see President Rajapaksa as the one person who can lead the Sinhala constituency and the country in forging a solution acceptable to all parties.

While there is distrust in the minds of the Tamil constituency, there is an equal or greater distrust about the long term agenda of the Tamil constituency and their politicians, in the minds of the Sinhala constituency. Again, rightly or otherwise, the belief amongst a wide section of the Sinhala constituency is that leaders from S J V Chelvanayakam and GG Ponnambalam onwards, have had the creation of a near autonomous Federal State as a minimum solution to the ethnic issue and they have considered other options offered by various Sinhala political leaders as “interim” solutions to their long term agenda.

If this perception or reality is not dispelled in no uncertain terms by the Tamil constituency by accepting Sri Lanka as a unitary state, there will never be a long lasting solution to the ethnic issue in Sri Lanka.

Sinhala mistrust also arises from the power and influence of the Tamil Diaspora, and the belief that the TNA is only a puppet of this strong lobby. The Tamil Diaspora has not articulated a position less than a near autonomous Federal state, with many still pushing for a separate State for Tamils in Sri Lanka.

These positions taken by the Tamil constituency in Sri Lanka, the Tamil Diaspora and the strident Tamil Nadu lobby in India are not helping in separating the woods from the trees in regard to this issue.

The influence of the Tamil Nadu lobby in Indian national politics has not helped the Sri Lankan Tamil cause, nor Sri Lanka itself, and ironically it has not helped India either, as it has led to an increasing Chinese influence in Sri Lanka. India has virtually invited its strategic “enemy” to get a sound grounding in its own backyard.

In order to separate the woods from the trees in regard to this issue, it would be necessary to introduce some immediate measures to overcome the current impasse, and then consider long term measures to address the root causes for the conflict. Immediate measures are needed to diffuse the current political tensions that are threatening the UPFA itself, and the fragile political peace that exists between the Sinhala and the Tamil constituency.

A longer term measure might be the replacement of the 13th Amendment with alternate methods of addressing Tamil constituency concerns. It is certainly not a short term measure.

It appears that three key issues form the basis of the contentiousness that exists in regard to the 13th Amendment.

a) Police powers

b) Land powers

c) Ability to amalgamate two or more provinces

The President is on record saying he will seek a Supreme Court ruling whether the 18th Amendment has taken away the granting of police and land powers to the provinces as contended by the Minister of External Affairs, G L Pieris. If the Supreme Court rules that it has, then the question of amending the 13th Amendment to address these two concerns will not arise.

If the Court rules otherwise, then, it may be necessary to introduce an amendment that addresses this concern to assuage the Sinhala constituency. In order to assuage the Tamil constituency, it might be wise to introduce such an amendment as a temporary amendment, for land and police powers to be considered in a wider constitutional amendment process through the proposed Parliamentary Select Committee.

In relation to the third point, that is the ability to amalgamate provinces, an amendment is required as the entire issue of devolution and the units of devolution should be subject to discussion at the PSC.

As a long term measure, the proposals put forward by the United National Party could be considered as an ideal starting point for discussions to commence at the PSC. These proposals are based on Sri Lanka being a unitary State, the broad basing of executive power, the removal of the executive presidency that nobody seems to want, the restoration of an effective Parliamentary democracy and devolution of some political and administrative powers to appropriate units of devolution.

It would be ideal and very good for the country if a summit is held with all political parties to arrive at a short term and long term approach towards ways and means of addressing not just Tamil and Sinhala concerns and tensions, but even tensions that have arisen with the Muslim community.

President Rajapaksa who has a very substantial following in the country and whose persuasive powers are well acknowledged by all, should give leadership towards organizing such a summit and persuading all parties to arrive at a common understanding as to what separates the woods from the trees, and how the country could forge ahead towards better community amity and reconciliation.

The immediate need of the hour is the conducting of the Northern provincial council election in an atmosphere of give and take where the TNA accepts that it is a start to have an election and permit the electorate in the Northern province to elect their own representatives to the provincial council there even if some powers envisaged in the 13th Amendment are not available, and to build on the political gains by participating in the PSC and working towards a more long term and comprehensive solution to the ethnic issue along with all other political parties and representatives of civil society.

The TNA as well as all political parties in Sri Lanka owe this to the people of Sri Lanka who have suffered so much on account of the inflexible positioning of various shades of political opinion in the country. Protecting their power base on the pretext of protecting their individual constituencies have blighted the country for decades since independence and the country has gone through several blood baths on account of this charade. It is time all political parties became honest and put the real interest of their constituencies, which is to live in peace and in harmony with their fellow citizens as equals and with equal opportunities.

– Asian Tribune -Monday, 2013-06-10-Editor

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Sri Lanka Says LLRC Action Plan Seeks to Extend the Services of Legal Aid Centers

Geneva, 02 June, (Asiantribune.com):
Sri Lanka has observed that the Legal Aid Commission of Sri Lanka primarily funded by the state, covers most parts of the country with approximately 70 legal aid centres, including in the former conflict-affected areas, and records a high caseload and provision of services.

Intervening during an Interactive Dialogue with the Special Rapporteur on the Independence of Lawyers and Judges, at the on-going 23rd Session of the Human Rights Council on Thursday (30 May 2013), Deputy Solicitor General Mr. Buwaneka Aluwihare noted that the National Plan of Action for the implementation of the recommendations of the LLRC has taken due note of the services that can be extended by legal aid centres in the post-conflict situation.

The Commission’s mission is to identify those members of society who lack access to the remedies available to them under the law, and to make available to them means through which they can use the law and the legal system to secure justice.

Full statement is attached of the intervention with ID with the SR on the Independence of Lawyers and Judges by Deputy Solicitor General Mr. Buwaneka Aluwihare:

Sri Lanka welcomes the report of the Special Rapporteur on the Independence of Judges and Lawyers which examines the relevance and the possibilities of providing legal aid to individuals who come into contact with the law but cannot afford the costs of legal advice, counsel and representation. Affording legal assistance to vulnerable groups of a country constitutes a vital segment of the administration of justice.

Legal aid was institutionalized in Sri Lanka in 1978 with the passage of the Legal Aid Act which mandates the operation of an effective legal aid scheme by providing legal advice, funds to conduct legal and other proceedings for and on behalf of “deserving” people. The enactment led to the formation of the Legal Aid Commission primarily funded by the state, and over the years its funding base has seen a significant increase.

The Commission’s outreach covers most parts of the country with approximately 70 legal aid centres, including in the former conflict-affected areas, and records a high caseload and provision of services. It may be noted that the National Plan of Action for the implementation of the recommendations of the LLRC has taken due note of the services that can be extended by legal aid centres in the post-conflict situation. The Commission’s mission is to identify those members of society who lack access to the remedies available to them under the law, and to make available to them means through which they can use the law and the legal system to secure justice.

There is a strong legislative basis for legal aid in Sri Lanka. It is implicitly recognized as a fundamental right in the Constitution, especially when read with the International Covenant on Civil and Political Rights – ICCPR Act No. 56 of 2007. The Legal Aid Act of 1978 provides an administrative and regulatory background to legal aid service provisions.

The absence of a statutory definition of the term “deserving persons” has permitted the Commission to apply the criteria recognised internationally in identifying the groups who are in need of legal aid. Women have been accorded special status and such aid is made available to all women seeking maintenance for themselves and for their children, irrespective of their financial status.

The Commission, while supported by the State, works independently of other justice sector institutions, which in principal ensures its impartiality and equal access to justice system for all citizens. While its main focus is litigation, it also operates several subject-specific desks and projects.

Legal provisions that are relevant in the context of legal aid includes the right to a fair trial by a competent court, and the right to be heard before such a court which are guaranteed to all persons by Article 13(3) of the Constitution of Sri Lanka.

Sri Lanka’s Code of Criminal Procedure states that every person accused before any criminal court has the right to be defended by a lawyer, and every aggrieved person has the right to be represented in court by a lawyer (Section 260).

A general right to legal aid in criminal cases at all levels of the court system was expressly legislated in Sri Lanka through the International Covenant on Civil and Political Rights – ICCPR Act No. 56 of 2007.

Further, the Supreme Court Rules 1990 (Rule 44(7)) provide for the Supreme Court to act on a complaint alleging infringement or imminent infringement of a fundamental right, even if it is not in the form of a formal petition, where the complainant may not have the means to follow the usual procedures and may suffer substantial prejudice by such infringement.

 

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