Whither the 13th Amendment?


by I. P. C. Mendis

It is now common knowledge as to the circumstances in which the 13th Amendment to the Constitution came into being.. The fact that it was introduced under duress and was forced down our throats is not in dispute.  Nor is the position that although India ostensibly displayed to Sri Lanka and the international community that its intentions were honourable in presenting it as a just and reasonable solution which could bring a lasting solution towards Tamil aspirations and a door towards peace, the LTTE which claimed to be the sole representatives of the Tamils,(reiterated most emphatically by the Tamil National Alliance led by R. Sampanthan), did not accept it as a solution. Rajiv Gandhi paid for it with his life.

In terms of the Indo-Sri Lanka Agreement, the Northern and Eastern provinces were merged and Varatharajah Perumal emerged as the Chief Minister of the new North/East Provincial Council which lasted only till he declared UDI and fled to India. Thus, the N/E Council was a short-lived one to begin with. The merger of the North and East was subsequently canvassed in the Supreme Court as being unconstitutional and the issue has since been settled restoring the status quo ante. The salient point is that the Indian government had to perforce accept the decision of our supreme judiciary without demur although it eroded a fundamental condition in the Indo-Sri Lanka Agreement.   The TNA, of course has not given up hopes for a re-merger.

The TNA which was happy to abdicate its  role as representatives of the Tamils and watched helplessly yet encouragingly  till the LTTE launched on a virtual suicide bid  upsetting in the process the normal peaceful life of not only the Tamils but the Tamil-speaking people of these areas (not to speak of the other resident population and the mayhem unleashed in the whole country) has no moral right to substitute itself for the roundly defeated LTTE, much less to arrogantly claim everything that its one-time ‘godfather’ sought and promised to deliver to those whom they claimed to represent. Once the LTTE was defeated, it necessarily follows that its camp-followers who sacrificed their community to self-seeking adventurists should be told where they got off and they, like their defeated masters are themselves a defeated lot.

They ((the LTTE and its stooges) lost in the battle-field what they stood for and bitterly fought for sacrificially at great cost to all communities over a period of nearly three decades. Records will show that the revenue from these two provinces during  this long period was meagre. The District administrations although kept alive were virtually run by the LTTE. District administration in these areas were a huge pretence without government writ. Government servants drew their salaries and fought side by side with the LTTE militants!   The rest of the country subsidised these provinces and their inhabitants very patiently. Militants too were fed.

Even after the cessation of the war, within the last three years an accelerated programme of development,  including rehabilitation work, has been carried out reportedly at a cost of Rs. 87 billion so far.  The government has had to contend with numerous protests from all quarters about the cost of living, and  the cost being partly due to the enormous development work undertaken in the north and east is no secret which the rest of the country has been decent enough to bear and forbear, with no-one  openly protesting as a cause. That is to the eternal credit of the people in the rest of the country. .Additionally, the government has had to satisfy the needs elsewhere.

The Consequences of War

Those who go to war invariably know what to expect - victory defeat or a truce - though either party starts with a lot of daredevilry and optimism. Yet, one thing is certain in that gains by either party are held or losses suffered borne as the case maybe as at the date of cessation of the war unless determined as appropriate by terms of a truce, if any. The question of a truce agreement arises as a result of negotiation towards a truce or surrender.  It will not arise in a fight to the finish when there is the victor and the vanquished. For the vanquished or for those for whom the vanqished had fought have no right even as a cat in hell to demand again what they had failed to achieve through armed confrontation. It is an utterly absurd position.

What is happening today with the TNA, which was very much part and parcel of the LTTE, is undoubtedly that. A corollary would be the annexation by Israel of Palestine territory after the six-day war. No amount of consistent appeals and pressure by sections of the outside world have moved Israel to make concessions so far The stance is backed no less than by the Americans and its allies, including the cradle of democracy which is England. Morality or not, it remains a conquest human rights notwithstanding. Powerful nations have held their booty for ere so long without compunction building empires. The conquest  of East Pakistan (Bangladesh)  ably supported by India is now a historical fact.  

After World War II, up came the Berlin wall and Japan is still under the hegemony of the Americans in some ways. The status quo ante is restored after prolonged negotiations with adequate safeguards against a recurrence of potential hostilities. This is not to argue chauvinistically that the Tamils have no grievances. There are important and urgent issues to be redressed and resolved but the path to be taken is not a confrontational one by the Tamils, supported by the Tamil diaspora or by Tamil Nadu via the Indian government nor by a jackboot policy by government at the behest of extremist forces. It has to be a via media where the unit of devolution cannot be misused to satisfy the aspirations of internal or outside forces thereby obstructing central governance and endangering the security of the State. Other communities have equal rights in those areas as the Tamis have elsewhere. 

The Indian Connection

India supported Prabhakaran and trained his cadres thanks to the JRJ government heavily leaning towards the West and drunk heavily with power treating the Indian government led by Indira Gandhi with contempt. Additionally, the Indian government had to satisfy and keep calm its own population of Indian Tamils having very close links to their Sri Lankan counterparts. India took advantage of the weaker position of the Sri Lankan govennment and its military and the many set-backs it suffered, and attempted to legalize  a structure which was federal in nature but unitary in character,  through a Provincial Council system akin to the Indian State system which was totally out of character to a tiny dot named Sri Lanka compared to a mighty mass like India with over a billion people. It was worse than trying to dress a pygmy in a King Kong kit and asking him to walk.

Some of these features, if implemented will bring to ridicule questions of sovereignty of the country, supremacy of Parliament, the security of the State and even the unitary character of the State. However, as it generally happens in such situations, it could have been accepted that provisions that were capable of being favourable or advantageous to India itself and to the widely accepted divide and rule policy, would have been in place. After all, the Sri Lanka government and its peoples’ representatives did not have any chance whatsoever in examining its provisions with a fine tooth comb.  Government members were herded into hotels and transported direct to Parliament. Not that it would have made a difference otherwise as theirs was not to question why but to do and die!

Opposition protests were dealt with fire power.  India got what it wanted but Prabhakaran did not play ball. Prabhakaran or not, the Indian Civil Service knew India had got a foothold.  The war continued unabated and fought to the end till Prabhakaran and the LTTE were vanquished. The circumstances which prevailed then do not exist now To attempt to keep LTTE demands alive by proxies is unacceptable and issues have to be settled in a peaceful environment and atmosphere and not on a confrontational approach.  Separatists have been defeated at much cost and sacrifice of men and material. India needs to shift away from the ‘big brother’ and bully  approach and concur with  the withdrawal of at least some of  their disgraceful and strong-arm measures  imposed on a friendly hapless neighbour taking undue advantage of its superior strength and position.

The 13th Amendment was in the nature of a forced truce which in any case was not acceptable to the LTTE (nor in fact to the Sri Lanka government) and the war continued. To impose it now would be totally untenable. The North will possibly be always represented by the Tamil community and the East with its Tamil-peaking population can be expected to link with their ideas. If, therefore, the Centre were to lose its writ on these two provinces through inherent powers given to provincial councils, the country will lose its unitary character.  Law and order will be in a shambles and governance will surely be at a stand-still.  One cannot think of police powers and land allocation being devolved.  It will be dangerous even with other provincial councils.

Certain unsavoury features come into focus only when the situation arises, as in the case of the Divineguma Bill. The 13th Amendment need to be re-hashed after careful examination and including acceptable safeguards to the minorities so that they can enjoy equal rights and dignified existence and recognition of their language and culture. As a first step, a 19th Amendment to the Constitution could be urgently presented to dispense with the consultation process with provincial councils for laws affecting matters in the concurrent list, where it is to be applicable to the whole country.  Other urgent amendments can also be included.

Cudgel or Scalpel

The "Political Watch’ column in the Sunday Island of 28th October gives a vivid description of  how two great democracies ( America and India) have tackled the dove-tailing of judicial and executive functions in the past. The Americans have been more direct and sometimes confrontational ( the cudgel approach) while the Indians were more soft towards the judiciary and chose to deal with problems as and when found necessary by amending the constitution ( the scalpel approach) and they have had no qualms in so doing numerous times. "While in Rome, do as the Romans do", they say. With just 22 nautical miles apart, this wise quotation can well be the guide to solving Sri Lanka’s immediate problem. It must not be forgotten that the 13th Amendment was ‘made in India’ and introduced under duress.

President Rajapaksa has given undertakings to India about 13 plus, whatever he had in mind at that time.  To launch out on a complete repeal of the 13th Amendment at this stage might turn out to be an invitation to catastrophe, the Indian factor inexorably being behind us like a bad smell. But amendments will certainly be in line with their thinking and practice and we can always throw the book at them. No precipitate action, however pressurized, should be taken now which would strengthen the hands of the Tamil diaspora and the hostile international community. They accepted the de-merger without question. The Indians as well as the Americans have apparently had their own issues time and again with the judiciary and the problems can be discussed with mutual understanding.

Sri Lanka can think of a few more urgent amendments to incorporate at the same time and obtain the Indian acquiescence. Provision for dissolution of a provincial council on specified grounds (as in the Indian constitution) will be salutary. A complete repeal can always boomerang with disastrous consequences. It is a matter of prestige and honour for the Indians. They would not certainly like to be shown up that their formula had failed. They have to project themselves as the mentor of Indian Tamils and will not wash their hands completely on the score of Sri Lanka being a sovereign nation. They violated our sovereignty once and they are under immense pressure from Tamil Nadu to do it again. It is better not to rush in where angels fear to tread. We have to take a lesson from JRJ’s fiasco!

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