Is 13-A valid any more?

By Gamini Gunawardane

My contention is that it has no validity in the present context.
My reasoning is as follows.

1. No consent

(September 25, Colombo, Sri Lanka Guardian) That this amendment has been forced on this country, against the wishes of the people has been sufficiently argued and therefore needs no more repetition. It is a well established legal principle that consent obtained under coercion/duress is no consent.

However, before proceeding to enumerate further reasons, I wish to focus only on three specific incidents that indicate the dimensions of this coercion and the evel 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.

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

This incident symbolises the amount of resentment and hatred generated in a country with self-respect, towards the man who forced this amendment on her.

3. The large scale anti government violence that spread across the country which sparked off after the signing of the Indo-SL Accord.

2. Will of the People

A constitution, I believe, has to reflect the will of the people. These three incidents together with many others mentioned by different writers, show that the 13th Amendment is not the will of the people. Though technically it is considered law, in that it is now included in the constitution following due process, it is now common knowledge that how it was manipulated. People’s opposition to this new legislation could be evident 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 violence that threatened to topple the government that was responsible for passing this law. They even went to the extent of killing the people who first went to cast their votes.

When the lawful avenues that are available to consult the people were effectively blocked by the very agencies who derived authority through the sovereignty of the people, it is in a way, not surprising that people chose to resort to violence to express their dissatisfaction.

c) On the other hand, the LTTE too rejected the provisions of the 13th Amendement and reverted back to war.

3. An aborted agreement

The conditions contained in this amendment were suggested to be offered to Prabhakaran in order to wean him and the other Eelam groups away from violence and force them to abandon their armed struggle. The Accord also included a condition that if Prabhakaran and the other groups refused to comply with this arrangement, India would disarm them forcibly using the Indian Armed forces.

Sri Lanka took the following steps to fulfill their part of the conditions of this Accord.

(a) Pass the 13th Amendment to the Constitution, in Parliament.

(b) Establish provincial councils in terms of the 13th Amendment.

(c) Temporarily merged the Northern & Eastern Provinces.

But, Prabhakaran, on his part, failed to surrender arms by accepting the 13th Amendment and enter a democratic political path promoted by this Amendment. India failed on their part to disarm the LTTE who went back to military action. Moreover, the LTTE made Rajiv Gandhi pay with his own life for his part played in the Lankan peace process.

Thus, of the three parties of the Accord, two failed to fulfill their obligations, while Sri Lanka who had only complied with her part, was left holding a 13th Amendment (provincial councils) that she never wanted, including merged Northern and Eastern provinces and further, an unfinished war with Prabhakaran.

It would appear from the outset that the SL government, even under trying circumstances, managed to successfully establish the provincial councils. Also, they contrived to merge the Northern & Eastern provinces temporarily to appease both Prbhakaran and India, under Emergency Regulations.

But Prabhakaran either failed or rejected to honour his part of the agreement while India too failed to follow the Accord by disarming Prbhakaran by use of force. Thus, other than the GOSL, both the other parties to the agreement failed to honour their part of the agreement. Thus, the accord that led to the 13th Amendment has been disregarded by two of the three parties concerned. Therefore, it cannot further have any validity today.

And, no one could insist on the GOSL for ‘full implementation of the 13th Amendment’ without honouring their part of the agreement.

4. Fictitious concepts

It is common knowledge that the LTTE approached all the peace talks held in the past with three fictitious principles which they maintained right throughout as non-negotiable, which different goverments of SL consistently rejected. They were:

1. That the Tamils are a separate nation.

2. Therefore they were entitled to self determination.

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

All the wars were fought on this basis – to preserve territorial integrity of the country, at a 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 had to dedicate their precious 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 is evident that this provision would be a measure to deviously 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 to be given the first opportunity. This incident would demonstrate the danger inherent in the 13th Amendment in the temptation it offers to the separatists, which can take arms 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 before they were won. On the other hand, the wars fought with great sacrifice of valuable lives of both sides, negate these fictitious ‘principles’ that the LTTE based its concept for waging the Ealm 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.

5. New circumstances

The situation today is that the GOSL has by its own effort, vanquished and eliminated the intransigent enemy. So, it could not be by means of offering ‘him’ a 13th Amendment (including either provincial councils or merged Northern & Eastern provinces, which in fact ‘he’ rejected). In these circumstances, what is the just in the 13th Amendment to exist further? Whom are we trying to appease now?

Thus, in these new circumstances, fresh thinking is needed. For those reasons, at the worst, the 13th Amendment could only remain a dead letter in our constitution.
-Sri Lanka Guardian