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13th Amendment: valid any more?



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by Gamini Gunawardane


(A paper read at the 12th Annual Conference on Sri Lankan Studies)


This paper seeks to examine the question of legitimacy of the 13th Amendment to the Sri Lanka constitution. It seems necessary to re-visit this topic time and time again as, the full implementation of the 13th Amendment is advanced by different sources as the ‘solution’ to the ‘conflict’ yet said to be persisting after the military defeat of the LTTE, and apparently on the basis that devolution of political power to the Provinces as the ‘solution, to the ‘conflict’.


This discussion will be done with the historical background of the genesis of this Amendment borne in mind. The immediate circumstances that led to the introduction of this amendment is the aftermath of the stalling of the Vadamarachchi campaign of the Sri Lanka Army, on its haunches, just before it was ready to deliver a ‘coup de grace’ on the LTTE in July 1987, by the Indian government, intimidating the then president of Sri Lanka.


Constitution: will of the people


It is well known that a constitution of a country reflects the will and the consensus of a people, of what they want. It is required to be swi generis. The 13th Amendment does not effectively reflect or represent the will of the people in that it was an amendment that was imposed on the people and the government by the government of India, under duress. Even President J.R. Jayawardene who presented this amendment to the country indicated in different ways that it was being introduced to the country against his will, but at the behest of India whose pressure he could not withstand. This amendment was not an idea that emerged from the people, or the government or even by the LTTE and from the other terrorist groups engaged in hostilities with the government of the time. They were all prevailed upon by the government of India to agree. Thus this amendment does not reflect the will of the people. Therefore has no legitimacy.


People’s opposition to the new legislation could be seen from the resistance offered by different sections of the polity.


a) The main opposition party refused to contest the 1st provincial council elections held under the 13th Amendment.


b) The JVP unleashed a wave of insurgency violence that threatened to topple the government that was responsible for passing this law. They even went to the extent of killing the first persons who went to cast the vote. When the lawful avenues available to consult the people by way of a referendum was effectively blocked by the very agencies who derived their authority from the sovereignty of the people, it is in a way, not surprising that people chose to resort to violence, to express their opposition.


No consent


Though this amendment was introduced by the Indian government, and it was passed in parliament following apparent due process, it did not in effect have the consent of the people or their representatives in the Legislature as was reflected through several background factors. Besides the government itself, though it introduced the Bill in Parliament in accordance with the Indo-Lanka Accord, there was evidence to believe that the Sri Lanka President agreed to it not of his own volition but under pressure of the Indian Prime Minister Rajiv Gandhi and the Indian High Commissioner, J.N. Dixith. It is a well established legal principal that consent obtained under duress is no consent. Thus, the consent obtained from both the Sri Lankan Executive and from the legislature was clearly under duress as displayed by several developments that took place in the aftermath of this piece of legislation being passed in Parliament, is in effect no consent.


That this amendment has been forced on this country, against the wishes of the people has been sufficiently argued by many writers and therefore needs no more repetition.


I wish to focus only on four specific incidents that indicate the dimensions of this coercion and the level of resentment that was expressed against it.


1. The fact that the Members of Parliament of the government party were made to live the night previous to the voting on this Bill, at the Taj Hotel, to ensure that none of them avoided or was prevented from attending Parliament the next day for voting. ( the MPs themselves had little or no discretion than to vote for the Bill as their undated letters of resignation were already with the President)


2. The fact that a Naval rating who was a member of the Honour Guard for Rajiv Gandhi before he left this country after signing the Indo-Sri Lanka Accord, aimed at him a blow with his rifle butt. .


This incident, though not condoned, symbolizes the depth of resentment and hatred generated in a country with self-respect, towards the man who forced this amendment on her.


Not being well versed in world history, I do not know of any other sovereign country that has been so badly humiliated by another sovereign country, other than of course the Nazi Germany and Japan and that too, only after they were militarily defeated.


3. The large scale anti-government violence that spread throughout the country which was sparked off from the signing of the Indo-SL


Accord agreeing to this amendment.


4. At least one Minister (Mr. Gamini Jayasuriya) resigned from the Cabinet not wanting to be a party to this exercise.


Hence, though this amendment may have been duly passed in Parliament for all ostensible purposes, it lacked the people’s consent and therefore had no legitimacy.


An aborted agreement


The amendment was based on the outcome of the Indo- Lanka Agreement. There were three parties to the agreement. Viz.1. government of India, 2. government of Sri Lanka and 3. another party, the LTTE and the other terrorist groups.


1. The LTTE failed to fulfill their part of the obligation in that they omitted to surrender their arms and abide by the provisions of the Accord covering the 13th Amendment.


Instead, they opted to continue with their arms struggle.


2. Indian government who undertook to disarm the terrorists by the use of force, if they omitted to enter the peace process by surrendering their arms, failed to honour their part of the agreement.


3. Only the Sri Lanka government honoured their part of the agreement at great cost to its people, by passing the 13th Amendment in Parliament under teeth of resistance from almost all quarters of the nation other than the members of the government party. Even there, a Minister resigned his post in protest while several top ministers who voted reluctantly had many misgivings.


The Sri Lanka government created the Provincial Councils as envisaged by this Amendment and, these institutions are still functioning at great cost the state coffers as well as to the people, widely considered by many as a ‘white elephant’. Sri Lanka government is now stuck with it.


Not stopping at that, as dictated by India, the SL government went a further extra mile, by temporarily merging the Eastern and Northern provinces at the behest of India, as an additional measure, to attract the LTTE to the path of peace, but to no avail.


Thus, an amendment based on an agreement in which two of the parties reneged could by no means be valid any more. It neither could be legal nor legitimate. Hence it will be illegitimate on the part of one party who failed to honour their part of the agreement if they now insist that Sri Lanka government should implement the 13 Amendment in full.


Fictitious concepts


It is common knowledge that the LTTE approached all the peace talks with 3 fictitious principles which they maintained throughout as non-negotiable, which the Sri Lanka governments consistently rejected in toto. They were:


1. That the Tamils are a nation.


2. That therefore they were entitled to self-determination.


3. That the Northern & Eastern provinces of SL are their traditional homeland.


All the ‘wars’ were fought out on this basis – to preserve territorial integrity of the Country, at great cost of life and property for the last 30 years. So many war heroes laid down their lives for this cause and so many parents, gave their children for this cause.


It would be seen that the 13th Amendment provides for facility for the merger Of two or more provinces by mutual consent. As a demonstration of this possibility the Northern and Eastern provinces were merged temporarily through Emergency Regulations. It will be seen that this provision would be a measure to deviously to concede the ‘principle’ 3 above which can eventually pave the way for the establishment other two ‘principles’. We had a glimpse of this dangerous possibility when Warthrajah Perumal, the first Chief Minister of the Northeastern Provincial Council declared UDI given the first opportunity.


This incident would demonstrate the danger inherent in the 13th Amendment in the temptation it offers to the separatists, which militates against the unitary principle enshrined in the Constitution. It would thus appear that this provision would negate the result of the wars fought so hard and won.


On the other hand, the wars fought with great sacrifice of valuable life on both sides, negate these fictitious ‘principles’ that the LTTE based its concept for waging this war. It is not adequate to defeat it on the battle ground but ideologically too through the rejection of the 13th Amendment. Now that the LTTE led by Prabhakaran who tendered these ‘concepts’ in their self assumed capacity as the ‘sole representatives of the Tamils’ at peace negotiations are no more, it cannot have validity any further.


Devolution?


It was argued then that the solution to the problem of the Tamils lay in devolution of power or in power sharing. The provincial council system was introduced through the 13th amendments ostensibly as an instrument to achieve devolution and power sharing. We have had the provincial councils for the last 23 years running and for nearly one year in the liberated Eastern Province. The North Eastern Provincial council was a disaster in that the then Chief Minister, Vathrajah Perumal unilaterally declared a separate state in those two provinces and ran away into hiding in India and is yet there. There is now an additional temptation to repeat such a move owing to the new encouraging environment brought about by the fresh surge of pro-Sri Lankan Tamil sentiments fired up by competing political struggle in Tamil Nadu, engaged in a contest of one upmanship.


Experience has shown that far from sharing power or devolution the provincial councils had only distanced the people from the administration further by an additional barrier creating a further level of corruption and waste, amply proving that the provincial council system did not suite this country. So much for the intended objective of the 13th Amendment to achieve devolution through people’s participation.


New circumstances


As said before, all this was done to appease the Tigers and attract them to the path of peace. The present situation is that Tigers are no more. They were vanquished in war. Peace has been restored.


Now to appease whom is anyone insisting that the 13th Amendment that nobody wanted, should be implemented in full? What problems will it solve now? Obviously, the unfailing interest of Indian Central Government in pursuing the implementing the 13th Amendment, is with a view to temporarily appease Tamil Nadu demand which is a never ending fire.


Besides all this, more than half the Tamil population in this country live outside the Northern and Eastern Provinces where they have found their homes. If power is devolved to the Northern and Eastern Provinces, how would it solve whatever problems of these peoples because they were Tamils?


 
 
 
 
 
 
 
 
 
 
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