Dr Sudath Gunasekara (President Senior citizen’s movement Mahanuwara)

-19 11. 2008 -Now that once again the infamous and much debated 13th amendment is trying to raise its ugly head, I thought it appropriate and timely too, to highlight few critical issues on this subject in the broader interest of the nation so that it will open the way for a nationwide public debate.

The 13th amendment was brought up in pursuance of the Indo-Sri Lanka agreement of 29th July 1987 entered upon between Sri Lanka and India. This was singed by J.R.Jayawardene, the then President of Sri Lanka and Rajive Ghandi the Indian prime Minister. Though it was called an agreement, in reality it was the will of the Indian government imposed on JRJ by the Indian government under the able and cunning stewardship of Dixit the then Indian Ambassador in Sri Lanka. We all know how it was preceded by the famous ‘dhal invasion’ of Jaffna peninsular in August 1983, which demonstrated the high handed action on the part of Indian expansionism. It was a blatant violation of all accepted international diplomatic ethics. In fact we all still remember how Dixit summoned JRJ to his office and got JRJ succumbed to his dictations under threats of imminent invasion.

In the words of a group of patriotic people who made an analysis of it ‘The Indo-Lankan Agreement was an agreement between the two Heads of States that was conceived, incubated and hatched in the greatest secrecy’ until they were singed. They were singed under a country wide curfew and a total press censorship. Even the foreign Ministry was kept in the dark. Prime Minister Premadasa stayed out of the country in protest. Minister of Internal Security Lalith Atulathmudali also boycotted it. It was also singed under a country wide protest organized by the opposition under Mrs. B’s leadership. Thereafter JRJ used his steam roller majority of 5/6th to get it passed by the Parliament. The Chief Justice of the country also resigned and left for Australia in protest.

This was the backdrop under which JRJ used his dictatorial executive powers to get the 13th amendment through. This scenario makes it more than clear that he singed these agreements under pressure from India for his own political survival. It is also not surprising that he did so, when we recollect that it was he who said in 1920s that Sri Lanka of Dutugemunu and Parakramabahu is a thing of the past and if you want to develop the country, Sri Lanka should be affiliated to India as one of its regional states.

This tragic event in the political history of this country has once again highlighted the mistake of leaving everything in the hands of power hungry politicians, in matters dealing with the destiny of the nation. It also focuses on the serious vacuum created by the tragedy of absence of powerful national level leaders and organizations who can tame the politicians, when it comes to issues that decide the future destiny of the country.

All in all this chain of events clearly demonstrate that the Indo- Sri Lankan Agreements did not have the support of the masses in this country, in whose hands lies the sovereignty of the Republic which is also said to be inalienable. Obviously therefore the 13th amendment has violated article 3 of the Constitution of Sri Lanka, although JRJ has legitimized it subsequently using his dictatorial executive powers. The Indo-Sri Lanka agreement was the result of a diabolical conspiracy hatched by India against Sri Lanka. It also has violated the provisions of Article 1 of the constitution which says that ‘Sri Lanka is a Free, Sovereign and independent country etc. Thirdly since by establishing provincial councils and the manner in which their functioning has been maneuvered, the unitary status of the Republic is also violated. (Article 2).The intension of the 13th amendment itself was not bon-fide. It was not enacted in the broader interest of the country and its people. JR singed this for his own survival and the survival of his government in the face the Indian threat.

One can argue that under the then prevailing rather sour Indo-Lankan relations (for which JRJ and his government was responsible) he had no choice. Therefore he had opted for the best choice in the interest of the country. But that is only mere rhetoric. The content of the agreements and the subsequent legislations (13th Amendment) clearly demonstrate how they have protected the interests of this country. Even the removal of civil rights of Mrs. B is a part and parcel of the same conspiracy.

Of the six amendments that were brought under the 13th amendment to the constitution, only amendments 2 and 4 are discussed here. The 2nd amendment amended Article 18 of the 1987 constitution which stated that the ‘Official language of Sri Lanka shall be Sinhala’, making Tamil also an official language of Sri Lanka. It also said English shall also be the link language.
Amendment 4 on the other hand which amended sec 154 of the original Constitution added a new Article as 154 Aunder a new chapter XV11A and it provided for the establishment of the Provincial Councils. Under this it was proposed to establish a Provincial Council for every Province.

Each Council to have a Governor who will exercise executive powers in relation to subjects assigned to the Provincial councils. Legislative powers will be carried out by the Provincial Council headed by a chief Minister and a board of Ministers elected by the people of the Province. Wide and far reaching powers were given to the Provincial councils under the Ninth Schedule List 1, which is called the Provincial Council List. This includes practically all powers pertaining to governance within the province including among other things Land, Police powers, Legal powers tax and Finance These Councils were also given powers even to negotiate with foreign governments and organizations. This has been already done in the NWP when Jayawickrama Perera was the CM. Provision for establishing ‘Super Provinces’ were made under Article 154A ,(3) by combining two or three adjoining Provinces to form one administrative unit with one elected Provincial Council, one Governor, one Chief Minister and one Board of Ministers.

The main purpose of the Indo Sri Lanka Agreement was to find solutions to the so called ethnic problem said to be present here and find a solution to the North- East problem and restore peace and normalcy in the country. But it is rather ironical that it also included a clause to make Tamil also an official language and for repatriation of the estate Tamils who had already been declared to be Indian citizens. These manipulations and the proposal to establish nine Provincial councils on the Indian model and some times even going beyond in matters of devolution are definitely sinister moves on the part of subversive Indian politics.

What was even more serious were the provisions made to amalgamate two or three provinces to form one Provincial council? Here they went further by providing for a referendum to be held for the people of those provinces only to decide whether they should stay together as one administrative unit or get back to their status quo. This again is a nullification of the sovereignty of the people of this country. Probably the designers of this sinister plan would have had the North, East and the Uva or the Central Provinces where there is a majority Tamil population to form in to this happy pro-Indian Tamil nadu within Sri Lanka. The fact that Saumya Moorthi Thondaman has already had discussions prior to this event at Ella Rest House with some foreign donor agencies to construct a super high way to link Nuwara Eliya and Badulla with Batticaloa support this argument and conspiracy.

In fact the recommendation of Provincial Councils for the other provinces as well was made only to hoodwink the southern people. In reality India wanted them only for the East, North and another Province of their choice, where there was a sizable Tamil population. Following the 13th amendment fortunately only the North and East provinces were merged and that also had to be dissolved after Vardharaja Perumal declared independence. The proposed referendum for the people of the two Provinces to decide whether they should remain as one or two was never held. After nearly fifteen years of debate, thanks to the JVP who went to courts, finally the North- East provinces were demerged and now the first danger of Provinces getting together on an ethnic basis to form the Tamilnadu in Sri Lanka, perhaps what the Indian had in their minds when they designed the Agreement is no more there. It should be noted that even today Perumal is kept as a ’state guest’ by India.

Although the two Provinces have been demerged consequent to a court order we cannot remain complacent that the danger is over particularly when we see the emerging new moves, both in international and local lobby circles to implement the 13th amendment. As we all know nearly for 15 years we did not have a provincial council for the North and the East for which it was really intended. Instead we have Provincial Councils in all other Provinces; causing an additional burden to the coffers of the state and enormous confusion to the good governance of this little Island nation. Since previously I have in several occasions discussed at length the tragedy of the Provincial Councils, I do not intend to deal further on that issue here. Instead now I will divert to a brief discussion as to why the 13th amendment should not be taken up at this critical moment of history of this Island nation.

As you would have already seen from the above observations neither the Indo-Sri Lannkan Agreement nor the 13th Amendment was ever wanted by the people of this country, with whom the country’s sovereignty rests. The agreement was something imposed from above by India against the wishes and sovereignty of the people of this country and the 13th amendment was thrust upon the people by JRJ to safeguard his political survival and none of the subsequent legislations were passed or implemented in the interest of the recipient country or its people.

Three major things happened as a sequel to the 13th amendment. They were unprecedented and critical too, in the context of the political future of this country.

1 Setting up of 8 Provincial Councils
2 Making Tamil also an official language (perhaps the only country in the world with two
official languages)
3 Repatriation of nearly 500,000 estate Tamils who should have been otherwise sent to India
under the then prevailing laws

Establishment of Provincial Councils was the biggest bane in this game. It not only strengthened the political boundaries set by the British for the permanent division of the Island in 1889 but it also further polarized the minority groups, both Tamils and Muslims who were clamoring for separation. The establishment of PCC also has multiplied the political and administrative institutions, which have in turn increased the government’s expenditure with almost zero returns. State of California in USA, six times larger than Sri Lanka, has only one Governor but this tiny Island has nine governors and nine Provincial Councils with a top heavy expensive state machinery over burdened with politicians and officials. For whose benefit do they exist? The increases in the number of political institutions, politicians, officials, offices and connected expenditure to maintain them were phenomenal and unbearable for a small country like ours. The waste, corruption, duplication etc also have unprecedentedly increased in keeping with the Parkinson’s Law. 

The new system also has increased ethnic polarization. Neither the LTTE terrorism nor the tendency for ethnic segregation among the Tamils has ceased or decreased as a result of this agreements or the implementation of the 13th amendment. Instead all problems in all fronts have escalated and it has even given new inspiration to Muslims and the estate Tamils also to agitate for separation. The proportional representation system of elections introduced by the 1987 constitution has made things even worse by complicating the election process and adding to the cost and above all alienating the elected from the voter and creating electorates without representatives; thereby making representative democracy a big mocker and a joke in this country.

As such the remedy recommended has now become worse than the malady itself. Therefore it could be safely stated that the overall outcome of this whole exercise has been disastrous to this country’s future. It only has consolidated the sinister intensions of colonial policies of divide and rule and the intentions of India of balancing political power at home and keeping Sri Lanka destabilized. The continuation of this system could be even more disastrous for the future of this country both politically as well as economically. What this country needs today is not policies that perpetuate and accelerate the disintegration of the Sri Lankan State but to look for ways and means of re-establishing the political stability, once we had in this country for millennia.

Therefore it is high time that we drop this curse and political cancer, the trap laid by the colonial masters by marking them on ground as well as in the minds of the minorities and that was given political and legal meaning and substance by India, at least now, and go for some pragmatic and meaningful system like the ancient ‘Tun Rata’ concept which will not only once again bring back political stability and ethnic harmony but also economic and social prosperity to this Island as one nation. I think Sri Lanka has already established an unbeatable world record as the country that has the highest number of Ministers, politicians and public officials, political and administrative institutions and that spends the highest percentage of the national income to maintain them, compared with other countries in the whole world. This also means the biggest burden to the public coffers adding very little or nil to national production.

The Provincial Council system and proliferation of unwanted and superficial public institutions is one of the biggest burdens we face today as a nation. Arresting proliferation of both political and administrative institutions therefore is a sine qua non, if any one is serious in good governance that marks efficiency, honesty and economy, in this country. The existing system only accelerates negativity in nation building and distances us far and further away from positivity. Why should this country labour the luxury of maintaining 874 politicians (including 9 Governors and 155 Ministers) when it could be run more efficiently with about 280 politicians and 27 Government Agents as shown below after devolution of power to Three political divisions and decentralization of administration to 27 districts.? See the following table for details.

 This is on the assumption that the country will be governed by one government at the
centre with a Parliament headed by a President and three Rata Sabhas, Ruhunu, Pihiti
and Maya. As it is I think Sri Lanka has the highest number of politicians and political
institution in the including Minister and Ministries and public servants in the whole
world. The expenditure incurred on this machinery therefore in y opinion is a criminal
wastage. It could be reduced at least by 50% and that could be gainfully diverted to
national development if we adopt the proposed system. In this backdrop my view is, that
not only the 13th amendment should be scrapped but the 1987 Constitution itself should ne
replaced with a new one that could bring about political stability and balanced
development in the country.

Dr.P.A.Samaraweera, Australia

During the last couple of months when the Sri Lankan war was on, the Tamil Diaspora and the sympathisers of the LTTE went on a rampage in the Western countries conducting demonstrations, processions, blocking roads, fasting and so on causing problems to the locals and inconveniencing the tourists. Because of this, tourists changed their travel arrangements from the West to Asia. This had an impact on their tourism.

 Apart from this, employing additional Police in demonstrations and supplying security to various Embassies was a supplementary cost to the respective governments. It had been reported that the LTTE showdown in London cost the UK taxpayer around 48 million Sterling pounds. The cost to the US , Canadian and French taxpayers had not been divulged.

 After the LTTE demonstrations subsided, the other issue in the West has been the H1N1 flu. It had been reported that in the US one million people had caught the flu. According to US Health Authorities the bug spreads so fast that there is little they can do to contain it. The flu numbers are so large that US Authorities have given up ordering shutting of schools because they say that there is every chance of catching the flu by stepping out of the house. According to the US Centre fo Disease Control nearly 6000 cases are recorded every week. This as well had affected US toursim.

 The paradox is that while the US had been having problems in its backyard, the US State Travel Department is warning US citizens not to travel to Sri Lanka due to potential terrorist attacks.

 During the height of the war with imminent terrorist attacks and when safety and security was at stake, US, UK, France and Canada considered it perfectly safe for their top government Ministers and Officials to visit Sri Lanka to pressurise the government for a pause in the war and go for a political settlement with the Tigers. But now that the war is over with no more terror attacks and suicide bombers moving around and the way is cleared for tourists, the US assessment is that it is not safe to travel to Sri Lanka!

 This warning came after the government directed the Sri Lankan Envoys to convince Foreign Ministers that Sri Lanka is a safe place for tourists. The government is conducting a wide publicity campaign on Tourism and has launched 2011 as “Visit Sri Lanka Year” and hopes to attract 2.5 million tourists.

 The irony is that the US had made its statement when the International Insurance Undertakers in London lowered the risk level in Sri Lanka and also after the Joint Cargo Committe of London removed Sri Lanka from the ‘War Risk List’. It appears that the US strategy is to undermine Sri Lanka.

S. Akurugoda, Melbourne, Australia

In an interview with Rajesh Sundaram of India Today, the LTTE’s arms procurer and new proclaimed leader, K. Pathmanathan (alias KP), has said that his outfit would fight for their past separatist goals “through political means” (without specifically mentioning what those political means are) until a political settlement is reached based on the principles of Tamil nationhood, homeland and right to self determination.

The latest love for the implementation of the 13th Amendment to the Constitution in full, initiated by the foreign funded NGOs and proxies in their pay-roll (both in and outside the government) is thus not a mere coincidence. Those who were campaigning for a mythical Tamil nationhood, homeland and right to self determination etc for decades but failed to achieve their objective, via military means, now believe that the present climate is the last available opportunity to achieve their target by capitalising the pressure said to have being exerted by the West and India in this direction. Reactivating the Indo-Lanka Accord based on the theory of Tamil homeland is their obvious choice as a starting point.

The said NGOs and the proxies think that the ordinary people will not oppose the President (who was once labelled as a hawkish by the very same people several years ago) for his actions at this stage, whether right or wrong, due to his current popularity. What NGOs and the proxies in their pay-roll have forgotten is that one’s popularity depends not only on the person himself, but also on those who admire him as well.

We have witnessed once how a very popular Prime Minister among common people, who reached his maximum popularity by opposing the Indo-Lanka Accord, became very unpopular, within years, when he became President, partly due to his associations with wrong advisers. Ironically, one of his notorious advisers is in the driving seat of the current ‘devolution bandwagon’, while being a high ranking emissary of the President of Sri Lanka.

This highly controversial diplomat is beating all the records of the so-called five star democracies in the world, by publishing his so-called ‘strictly personal views’ on politically critical issues, almost one after the other, some of which are highly detrimental to the stability of the government he represents. Although we have had opportunities to observe how foreign diplomats of five star democracies in Sri Lanka are interfering in internal matters of our country, we are not aware whether those foreign diplomats have been permitted to express their ‘personal views’ on political issues affecting the governments they represent. Is he being paid by the government to brainwash the people in favour of devolution, in addition to his present paid assignment? Why he is using the official website of Sri Lanka mission to propagate his so-called ‘personal views’? Is this website, giving the same publicity to the views of those who oppose his ‘personal views’ and if not why? Is this person, who once wrote ‘devolve or die’ aware of the priorities of the people of Sri Lanka today?

The country is experiencing real peace not because of the so-called peace envoys, peace vendors or other wolves in sheep clothing, but to a great extent, due to the unequivocal support given to the President to wipe-out terrorism by those who were labelled as war mongers, chauvinists, hawkers, Sinhala extremist etc. The LTTE’s surrogates and the proxies in their pay-roll are still continuing to use these pre-fabricated labelling, shamelessly, when referring to those who were instrumental in eradicating LTTE from our soil. The most recent news item appeared in Lakbimanews under the heading ‘Govt for ‘lucky 13’ – Extreme political parties sidelined’ is a case in point. The news item is referring to National Freedom Front (NFF) led by Wimal Weerawansa M.P and Jathika Hela Urumaya (JHU) as “extremist” elements”. Apart from any one who is not suffering from amnesia, the whole country is fully aware of the role played by Wimal Weerawansa, his party JVP and JHU during the last presidential election, though the writer of the said news item is appeared to be unaware of it.

Most of the campaigners for the full implementation of the 13th Amendment were either supporting the opposition candidate or were not taking an active role in support of Mahinda Rajapaksa during the last presidential election due to their strong affiliation with the former President Chandrika Kumarathunge and her federal packages. The obvious questions we have are; what contribution these people have made to bring the President into power and in what way they have helped to eradicate LTTE during the last three decades? What support they have from the public in favour of their policies? How many of these people can win a seat again, if a parliamentary election is held now?

Last month we came across a cabinet minister attempting to find fault with Mr. S.W.R.D. Bandaranaike, the founder leader of his own political party, for making Sinhala the official language. Acceptance of Indo-Lanka Accord, which was opposed in 1987 by its former leader Mrs Bandaranaike, as the best solution to move forward could be viewed as an another attempt to find fault with a former leader of the same party by its incumbents . With this trend of acquiring policies which were opposed by their previous leaders; the day may not far for people in Sri Lanka to see future leaders of the same party finding fault with the current leader for killing Prabhakaran when they were finally pushed towards Eelam as the best solution!

As Minister and government spokesperson, Keheliya Rambukwella, quite correctly identified, our first, second and third priorities are to resettle the 300,000 Internally Displaced Persons (IDPs) and see that they become fully integrated and happy citizens of Sri Lanka. “The need of the hour is not to implement the 13th Amendment of the constitution or any system of devolution power. The fisherman in Trincomalee wants a boat that was disrupted in the war, to begin fishing. He will say: give me a boat, not devolution,” the Minister remarked.

Tamil civilians liberated from the clutches of the LTTE Tamil Tiger terrorists are not interested at all on the 13th Amendment to the constitution, as their priorities are the peace, employment, development and re-building their lives.

By Janaka Alahapperuma from London

Great Britain celebrated its first ever Ranaviru Day or ‘Armed Forces Day’ on Saturday 27th June 2009 honoring the men and women who dedicate their lives to defending Britain, including serving troops, service families, veterans and recruits.

Hundreds of events took place around Britain to celebrate the achievements of serving troops, service families, veterans and recruits. The centerpiece of the celebrations was held at the historic Dockyard at Chatham, Kent, on 27th June, which was included, a fly-past by the Red Arrows, parachute displays and veterans’ parade.

British Prime Minister Gordon Brown and first lady Sarah Brown attended the celebrations and paid tribute to the brave men and women of the Armed Forces at the UK’s first Armed Forces Day, along with about 30,000 members of the public.

During a speech, the Prime Minister said those attending events around the country had demonstrated the “high esteem and regard” in which the Armed Forces are held.

He further said “The Armed Forces who do so much, the families who make such sacrifices. I don’t think we say thank you enough, today is our chance to say it and say it with one voice, thank you very much to our Armed Forces.” Mr Brown praised the courage of forces in Afghanistan and told veterans that their efforts in previous wars would never be forgotten.

In April, British Prime Minister Gordon Brown visited troops stationed in the Helmand Province and announced the Armed Forces Day during his historical visit to Afghanistan. Later he launched the Armed Forces Day flag campaign on Tuesday 28th April to celebrate the event in grand scale.

Speaking in Afghanistan, British PM Gordon Brown said, “Britain’s armed forces are second to none, and the whole country owes them an enormous debt of gratitude. Our troops risk their lives fighting the agents of terror here on the front line in Afghanistan to keep the streets of Britain safe, and they are a force for good standing up for the UK’s interests right across the world”.

“Armed Forces Day is our chance to say thank you. I’m proud to be out here in Helmand Province launching the Armed Forces Day flags campaign – I urge everyone to send off for this specially designed flag and fly it with pride.”

English Army was established in 1661. From the Union Act it was merged with Scottish Army and introduced the British Army in 1707. In Sri Lanka ‘Ceylon Volunteer Force’ was started by British rulers in 1881. Later in 1910, ‘Ceylon Defence Force’ was established. Therefore British armed forces have nearly 350 years old long history comparing to Sri Lanka. They were our masters and we learnt lot from them. Until 1970’s our armed forces were called as Royal Army, Royal Navy and Royal Air Force. Now things have changed.

When British government and its people decided to honour their armed forces and fallen heroes who fought for the sovereignty, freedom, safety and unity of Great Britain for many centuries, Sri Lankans are miles ahead in honoring our heroes. In fact, Sri Lanka is a world leader in that front. Sri Lankan community is also tremendous in the way they paid their respect and gratitude towards Ranaviruvo during last couple of decades. Perhaps the British Government has gained some ideas from modern day Ranaviru Day celebrations from Sri Lanka, how to pay the nation’s respect and tribute to heroes who sacrifice their today for our tomorrow.

On Monday 22nd June, Prime Minister Brown accepted the first flag from members of the Armed Forces at 10, Downing Street, at his official residence in London. Dorothy Hughes (Royal Hospital Chelsea), Sgt Nicola Thompson (Army), Corporal Ryan Dunn (Royal Air Force), AB Mat Aconley (Navy) and Cadet George Whitfield met the PM at the occasion. Downing Street flew the Armed Forces Day flag for the week leading up to the event to honour the Forces. Thousands of flags were flown simultaneously around the country in the run-up to the UK’s first Armed Forces Day.

The specially-designed Ranaviru flag was introduced to the public and available to buy to celebrate the UK’s first ever Armed Forces Day – a new annual event. Hundreds of councils throughout the United Kingdom, the Channel Islands and the Isle of Man raised a unique flag to support Britain’s first ever Armed Forces Day at 10:30 BST on 22 June to begin a week of celebrations in honor of the Armed Forces past, present and future.

Armed Forces Day flags were flown the length and breadth of the country, from the Shetland Islands to Land’s End, and from Lowestoft (England’s most easterly point) to the Scilly Isles. Over 3,000 members of the public, businesses and schools flew official Armed Forces Day flags and joined in the celebrations. Flags were also raised by British Service men and women serving overseas, including in Afghanistan, Iraq, Cyprus, Germany, Gibraltar and the Falkland Islands.

Professor Sellakapu S Upasiri de Silva

Indo -Sri lanka Accord (agreement) was signed by the President of the Democratic Socialist Republic of Sri Lanka His Excellency Mr. J. R. Jayewardene and the Prime Minister of the Republic of India his Excellency Mr. Rajiv Gandhi in Colombo on July 29, 1987, to establish peace and normalcy by resolving the ethnic problem for the safety, wellbeing and prosperity of people belonging to all communities of Sri lanka.

The text of the Accord included the following statement to prove that this Accord is a contract agreement between the two parties: Have this day entered into the following agreement to fulfil the objectives.

If this agreement is to form a contract it should meet the following legal requirements for the contract to be a legally binding contract:

· Offer & Acceptance
· Consideration
· Capacity to Contract
· Consent of parties
· Intention

A contract is simply an agreement which is enforceable at law. To be enforceable it must be clear that the parties intended the agreement to be legally binding. They can only be established if the requisite intention to be bound can be established. The test of intension is objective. The courts look at what was agreed, the circumstances surrounding the agreement, the words used by the parties, the effect of the agreement on the parties and whether their subsequent action indicate a belief on their part that the agreement was binding. Depending on the type of agreement a presumption may arise that either the requisite intention was present or that it was not.

If this is a social and domestic agreement there is a rebuttable presumption of law that the parties did not intend their agreement to be legally binding.

If this agreement is a business or commercial agreement there is a rebuttable presumption of law that parties did intend to be legally bound by their agreement.

As the parties intended that this agreement intend to be legally bound then this agreement will come under the business or commercial agreement and the parties are intending this agreement to be legally binding. Now the million dollar question is, is this agreement (contract) legally binding? With business or commercial agreements the presumption can be rebutted by the person who alleges lack of contractual intention proving that the agreement was not intended to be contractual.

So we are in a legal dilemma here as this agreement (contract) has not met the Acceptance, Consideration, Consent of Parties and Intention. This agreement entered between the Government of Sri Lanka and the Government of India has not met these legal requirements, any court of law may declare this agreement null & void or illegal.

The government of Republic of India, according to documented evidence, has never consulted the President of the Democratic Socialist Republic of Sri lanka or the Government of the Democratic Socialist Republic of Sri lanka to get the “consent of the Government of Sri lanka” before formulating this contract. This contract agreement failed to meet the intention of this contract agreement to resolve the ethnic problem for the safety, wellbeing and prosperity of people belonging to all communities of Sri Lanka and never fulfilled by this contract agreement.

The Republic of India has used Military Force to change the Capacity to contract of the President of the Democratic Socialist Republic of Sri lanka and the signature to this contract agreement was obtained under undue force. As such this contract agreement has violated the entire requirement to make this a legal contract.

Leaving aside the basic requirement to form a legal contract this contract agreement has breach the following Clauses of the agreement and as such a Court of law will set aside this agreement as invalid.

Clause 1.1 Desiring to preserve the unity, sovereignty and territorial integrity of Sri Lanka.

This Clause 1.1 is breach by inserting the Clause 1.2, 1.3 and 1.4 as these three Clauses contradicts the desire of this contract agreement to preserve the unity, sovereignty and territorial integrity of Sri lanka.

Clause 1.2 acknowledging that Sri Lanka is a “multi-ethnic and multi-lingual plural society consisting, inter-alia, of Sinhalese, Tamils, Muslims (Moors) and Burgers. This statement in this Clause is defective at law as Sri Lanka is not a multi-ethnic and multi lingual plural society as the majority community is Sinhalese and the Sinhalese in Sri Lanka consists 74% of the total population. This agreement has overlooked this important factor in formulating this clause.

Clause 1.3 recognising that each ethnic group has a distinct cultural and linguistic identity, which has to be carefully nurtured. This statement in this Clause is defective at law as Sri Lanka need not to nurture the linguistic identity of other minor ethnic groups as they should assimilate with the majority Sinhala population of 74% of the entire population.

Clause 1.4 Also recognising that the Northern and the Eastern provinces have been areas of historical habitation of Sri Lankan Tamil speaking people, who have at all, times hitherto lived together in this territory with other ethnic groups. This Clause is misconstrued and mis -representing the true facts. How can 12% Tamil population claim 1/3 of the land mass as their historical habitation? As this Clause comes under the unilateral mistakes the contract will be void if this can be proved in a court of law.

Fundamental Breach

Fundamental breach is the failure by one party to perform a primary obligation under the contract so that the other party is deprived of substantially the whole  benefit that he or she was to have received under the contract.

There are few fundamental breaches in this contract agreement as the Republic of India has failed to meet the primary obligation they promised under this agreement to resolving the ethnic problem of Sri lanka. Democratic Socialist Republic of Sri Lanka resolve this problem after 22 years of signing this agreement and as such due to the effect of this mistake the contract is VOID if the mistake is sufficiently FUNDAMENTAL at Common Law. In Equity the contract, if not void, can be set aside.

Under Section 2 Clauses 2.1, 2.2 and 2.3 are creates common mistakes as all these facts included in these Clauses are fraudulent misrepresentations and as there was no proposal by the government of Sri Lanka to permit adjoining provinces to join to form one administrative unit.. It was a unilateral decision by the Republic of India.

Clause 2.3 to hold a referendum on or before 31st December 1988 never took place and as such this clause was breach.

The amalgamation of the North and the East under Cl. 2.2 was set aside by the High Court of Sri Lanka. As there was no referendum to get the consent of the people of  the East. This decision by the High Court, if requested by the litigants should have extended to the whole contract.

Furthermore as the Indo-Sri lanka accord failed to function as designed and the Indian Government failed to meet the Clause 2.16 (a), India will take all necessary steps to ensure that Indian Territory is not used for activities prejudicial to the unity, integrity and security of Sri Lanka.

As the Republic of India failed to provide and meet the requirements under Clause 2.16 (a), and the other Clauses 2.16 (b), 2.16 (c), 2.16 (d), 2.16 (e). This contract agreement is breach and the above Fundamental Breaches has created this contract to be Voidable (In Equity) .

In my opinion the legal validity of this Indo-Sri lanka Accord will be set aside by the High Court of Sri Lanka if contested and if the Indo-Sri lanka Accord is declared VOID then the validity of the inclusion of Amendment 13+ into the Constitution and the establishment of Provincial councils are questionable.

Dilrook Kannangara

By Charles.S.Perera

No Constitution is sacrosanct and any clause that does not fit in the development process of the country could be amended either by a two third majority or a referendum. Therefore the 13 Amendment could be removed if the implementation of it could lead to political problems.

 There are those who see nothing objectionable in the implementation of the 13 Amendment and there are those who oppose it. In the context of the thirty years of suffering under a ruthless terrorism, it is time that all of us whether we are Sinhala, Tamil , Muslim or other, take a new look at what our future should be. In that perspective of change, it is normal for us to ask ourselves whether the implementation of the 13 Amendment would be an impediment for our progress as a Nation. Yes ! as a Nation , because it is in that light we should proceed to organise our future.

 Many writers had come out with very pertinent arguments in favour or against the implementation of the 13 Amendment. The question of the implementation of this now controversial Amendment, before being analysed from an intellectual point of view, should be looked at from the common man’s angle, with more common sense. An ordinary man may see the implementation of the 13 Amendment as a legal imposition of his separateness. A man belonging to an area and to an ethnic group. The 13 Amendment would not make him seem to belong to the entirety of the land which he calls his mother land.

 This despite the significant pronouncement the President Mahinda Rajapakse made in his important speech to the Parliament. He said that Sri Lanka has no more minorities. Those words said a lot, though the die hard Tamil separatists did not have the capacity make much of it. It means that the ethnic difference is over, and that if it would continue it would be in the minds of those who disdain unity. It also means that Sri Lanka would not speak in terms of the origin of its citizens but in terms of the individuals comprising the Nation of Sri Lankans.

 In such a situation the implementation of the 13 Amendment may seem as a means to continue the ethnic difference. And justify the fear instilled in the mind of an ordinary man of legalising his separateness.

 However, the President Mahainda Rajapakse has said, prompted by a statement made by the Minister Champika Ranawaka, that he should not be hindered to implement the 13 Amendment.

 Therefore, we have to respect the intention of the President, which is to implement the 13 Amendment even though our own personal views may be different. We have to respect the wish of the President because we now know from what we have seen, that the President Mahinda Rajapakse could be trusted to safeguard the interest of the country and its people.

 It was his determination, wisdom and foresight that made him prepare the ground before he took the terrorists by their “horns”. He subjugated and eliminated terrorism ,and he alone was responsible for that great achievement. It was he who selected the Army Commander Sarath Fonseka to launch the military operations, others to lead different security Forces, and appointed Gotabhaya Rajpakse as the Defence Secretary to coordinate the Armed Forces. Thereafter the President left the military operations against terrorism entirely in their hands without any interference. He was able to place his unshaken confidence in the people he selected to conduct the military operations to eliminate terrorism.

 Mahinda Rajapakse through out the military operations did not seek to antagonise any one. He either ignored impertinent and insolent statements of his opponents, or made his intentions clear at his meetings with the people.

 When his one time friend, and a Minister of his cabinet Mangala Smaraweera made wild accusations, of bribing the terrorists, and insulted him claiming that Mahinda Rajapakse had misappropriated tsunami funds by crediting them to his own bank account , the President did not make any statements. He did not directly or indirectly made reference to Mangala Samaraweera’s ill founded criticism.

 When Ranil Wickramasinghe accused the President for enriching the family, the President did not bother to reply him. Yet when ever he met Ranil Wickramasinghe he welcomed him as a friend.

 When Blakes, Chilcots and the rest of the representatives from the International Community kept on repeating that there is no military solution to the terrorist problem but a political solution, the President kept a “loud” silence. It was not his “business” any more, the military operations against the terrorists were the responsibility of the army.

 The President knew exactly what he was doing and how to reply to his interlocutors. Many were the delegations from the Indian Central government that came to discuss the military situation and request a respite in the military operations. All such delegations were well received by the President, and none of them showed signs of displeasure after meeting with him.

 He even received David Miliband and Bernard Kouchener, who thought they would “shake up” the Sinhala President and make him cede to their demands, but Mahinda Rajapakse proved that he had more diplomatic tactics in him than them with their “pseudo” International Standing.

 That is the calibre of the President fortune has given to Sri Lanka to lead the Nation in this most critical period of its history. His honesty and integrity is unquestionable. Therefore we know that his intentions are bona fides, he has nothing to gain and he is not self seeking. His devotion to his country and the people is greater, and he has put himself completely at the service of them.

 The President will do what is best for the Country and its people , and let us therefore leave the 13 Amendment in his hand .