Opinion

Is 13th Amendment INDIGENOUS?

04 Mar 2014 - {{hitsCtrl.values.hits}}

The political analysts in Sri Lanka advance a theory that our 1978 Constitution has homegrown roots from our own soil and not imported from any other country. Some of them are so proud to claim that the entire fabric of the Constitution is adumbrated with the principle of constitutional autochthony.

It is strongly aired in the media that 13th Amendment to the Constitution is not autochthony. Even the Opinion Poll of the public conducted by several electronic and print Medias shows that 53.1 % desires to abolish the 13th Amendment. Most of the elites are not the protagonists of power sharing even through the 13th Amendment. Some express strong opposition while some are pusillanimous. By and large they want a highly centralised unitary system. By conviction, they stand for development of the country as opposed to power sharing.

Meaning of “autochthony”
According to the dictates of many dictionaries, the word ‘autochthony’ is derived from Greek, to mean ‘sprung from the soil’.

Dr. J.A.L. Cooray has dealt with the principle of constitutional autochthony in his Book titled ‘Constitutional and Administrative Law of Sri Lanka (Ceylon) - 1973’.
It appears that the principle of ‘autochthony’ was first asserted by the Irish Courts in 1922 when they aspired to free from the UK, adopting the Irish Free State Legislature as a Constituent Assembly. Instead of adopting a home grown Constitution, the Irish Government adopted the Independence Act passed by the UK, granting independence to Ireland. The New Constitution of Ireland was approved but not passed as an Act by the Parliament of Ireland. Besides it, Ireland passed its Constitution while she was a member of the Commonwealth. So, the homegrown roots were abandoned by the Irish.


Kandyan Convention
The Dutch administered the legal system according to their laws, known as Roman Dutch Law. (RDL). Even at present, RDL is our Common Law.
On 2nd March 1815, with the fall of Napoleon at Waterloo, the Kandyan Provinces came under the suzerainty of the British and the Kandyan Convention was signed on 02.03.1815.

The Kandyan Provinces enjoyed unbroken rich legal regimes both in the political administration and administration of justice. The Kandyan legal regimes had, without a word of murmur from any quarter, achieved the principle of constitutional autochthony, grown from native soil.

Most of the elites are not the protagonists of power sharing even through the 13th Amendment. Some express strong opposition while some are pusillanimous. By and large they want a highly centralised unitary system

Laws of Sri Lanka:
In 1972, when the First Republican Constitution was promulgated no step was taken to adopt the home grown constitutional autochthony of the Kandyan legal regime and/or the principles of Thesawalamai with necessary and required adaptations as it has been declared in the Kandyan Convention to foster Buddhism.

It is expressly stated in the Kandyan Convention   that ‘the Religion professed by the Chiefs and Inhabitants of the Kandyan Provinces inviolable and its rites, ministers, and places of worship are to be maintained and protected’.

An unbiased study of the 1972 Constitution would establish beyond doubt that many of the main institutions of UK that had been evolved through constitutional conventions and practices were embodied in the Constitution, no part from the Kandyan and/or Thesawalamai legal regimes were incorporated.

The Civil Procedure Code was drafted by the Commission, headed by Sir Samuel Grenier, the then Attorney General. It was based on the Indian Civil Procedure, Code of New York of 1880 and the English Rules framed both in 1883 and 1885. The Indian Criminal Procedure Code was bodily brought into Sri Lanka with necessary modifications and amendments.

At present several international agreements are frequently executed and the required international legal regimes are brought into operation. Thus, the principle of autochthony has become a myth and otiose. Thus, in this 21st century no country in the world could claim to be autochthonous.

The 1978 Constitution is based on the principles of government of France, USA and Britain models of parliamentary democracy with certain provisions to enhance the home grown principles of government.

Indo-Sri Lanka Agreement to establish Peace and Normalcy in Sri Lanka was signed on 29.07.1987. It spells out Indian model of power sharing directly descending from her Constitution but the 13th Amendment is not so.

The 13th Amendment is enforced by enabling legislation, regulations, circulars issued from time to time. Ministers, Secretaries and other officials had to delegate their respective powers and functions unlike the Indian model and other international agreements, such as a bilateral agreement between India and Sri Lanka, Indo-Ceylon Agreement Implementation Act of 1987 and an Act to provide for the preservation, reduction and control of pollution in Sri Lankan Waters Marine Pollution Prevention Act No.59 of 1981. Thus, the 13th Amendment envelopes all powers and functions, lying exclusively within the domestic polity of Sri Lanka.

All religions practised in Sri Lanka have no home grown roots in Sri Lanka. Hinduism and Buddhism came from India. Islam came from Saudi Arabia. Christianity hailed from Europe

The new concept of “National Policy” embodied in the 13th Amendment, enormous powers of the Governor, his ability to act with impunity, omnipotent powers of the President, retaining the centralized unitary character of the State as postulated in the 1978 Constitution, various ways of dissolving a Provincial Council, wide and indiscreet powers of the President under sub-articles of Article 154L, undermining the powers and functions of a Provincial Council to a very great extent are matters sprung from the soil although the Provincial Council System stems from the Indian model.

The LTTE was not defeated by Sri Lanka alone, using homemade methods of warfare but with the active aid of international communities on all fronts, more so with the active participation of India. Why then be a cry that 13th Amendment is not autochthonous? Is it to deny power sharing with the Tamils?
If any comments, the writer could be contacted: [email protected]

Opinion

Is 13th Amendment INDIGENOUS?

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