By Gunadasa Amarasekera President, Patriotic National Movement

The Agreement Prof. G. L. Peiris has signed with India on behalf of the Sri Lankan Government has once again brought up the issue of the 13th Amendment to the fore and created a situation wherein we will have to decide whether we are to implement it fully, amend it, or repeal it totally. We seem to have reached a crisis situation with very little chance to play around. No hedging or prevarication appears to be feasible.

Before presenting our views as to what needs to be done regarding the 13th Amendment it may be useful to understand briefly how we reached this crisis situation.

In 1987, when the Indo-Sri Lankan accord was signed paving the way for the 13th Amendment and the Provincial Councils Bill, what motivated India to do so was very clear. No better proof of it is needed than the statement made by Rajiv Gandhi in Chennai on his way here to sign that accord. ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Sri Lanka like Bhutan will be within our orbit,ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ was what Rajiv Gandhi told the Tamil Nadu MPs who had gathered there.

Indira Gandhi selected Prabhakaran to achieve this aim taking him to be a puppet that could be manipulated. Little did she realise that he was no puppet, but a man with a mind of his own, and a vision of his own, with a dream of a greater Eelam, a Dravidasthan at a future date. He was not prepared the toe the Indian line. That sad realisation with the passage of time, coupled with the failure of the IPKF, and the dissolution of the Provincial government of Vardharaja Perumal made India realize that it should lie low, neither helping, nor hindering us to destroy Prabhakaran. That non interference in the last stage was in self interest.

No sooner was Prabhakaran removed from the scene than India started its old game. Before the lapse of even two days and even before rigor mortis had set in upon Prabhakaran, an Indian emissary was sent here to remind us about the 13th Amendment. That was in May 2009. Since then all those politicians, all those top bureaucrats who came here had only one thing to say – implement the 13th Amendment. We were reminded that it was the sacred duty on our part to abide by this new amendment, forgetting the unholy way in which it was introduced.

However their demand was not heeded by President Rajapaksa. One year passed; there was all talk and promises but no action. By May 2010 India was becoming desperate. So were those new found allies, Ban Ki-moon and his masters. Probably they all realised that this was the last chance. Mahinda Rajapaksa was all out to develop the North and the East and was fast winning over the hearts and minds of those poor Tamil masses, leaving no room to the separatists, and their backers.

Time was ripe for a new modus operandi. Moon had quietly initiated the first step in that direction, unnoticed by those erstwhile advisors and pundits. In the bonhomie following his visit just three days after the defeat of the terrorist outfit, Moon saw to it that Mahinda Rajapaksa puts his signature to an agreement to initiate an accountability process for addressing violations of Human Rights. How this had been twisted to suit Ban Ki-moonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s agenda has been pointed out by Parakrama Karunratne, in his article ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”Moon Panel Report and some aspectsƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢.

The Sri Lankan Government cannot be pardoned for both agreeing to such a proposal as well as for appointing the LLRC, which was interpreted by our enemies to their advantage, as an admission of guilt on our part. There was no hurry at all to appoint such a Commission, unless the government was naƒÆ’†’ƒ”š‚¯ve enough to believe that such actions would convince Moon and his masters about our innocence. Or it may even be political cunning of a low level, good enough for the local audience but not at the Moon level.

One more year was granted to carry out the wishes of India and the Western powers which, over the years had become identical. They had to be identical since they had come together to face a common enemy – China, towards whom we were perceived to be tilting. By June 2010 both camps were becoming desperate and restless.

In 1987 when the NGO cabal was crying from rooftops going all out to prove that PrabhakaranƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s terrorism was ethnic in origin – a result of ethnic discrimination, and the government was going after peace talks, I brought out a collection of essays (Ganadura Mediyama which I understand had been translated by the Indian High Commission) where I pointed out that it had nothing to do with a so-called ethnic problem, but was the outcome of a conspiracy by the Western powers, and a counter conspiracy by India.

What I pointed out at that time has to be revised. The word ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”counterƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ will have to be replaced by ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”joint.ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ By now it is clear as daylight, that it is a conspiracy hatched together and executed severally and jointly by India and the West. Izeth Hussein, a perceptive political analyst has seen through this. Of course with his penchant for devolution he comes out with his pet solution – implement the 13th Amendment. He even points out that it will circumvent the need for an international commission which will be a long drawn out procedure!

He with his long experience as an ambassador and his intimate knowledge of the Indian diplomats, warns us that it may end up in a Cyprus type of solution, unless we take his advice seriously. It is time Izeth Hussein realise that we have faced innumerable times this kind of Cyprus type solution in our long history. The difference Hussein, between those Indian diplomats and ours, is that though both are English speaking, they are not English speaking pariahs. Macaulay succeeded not in India, but here in this country.

MoonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s expert panel was the contribution made by the West – UK, Europe to this joint conspiracy. Moon selected the right people, friends of the Tigers, and enemies of Sri Lanka to come out with a report – a highly imaginative piece of fiction which deserves the Booker prize or even the Noble prize – if we are to go by the quality of the works that have been selected for it in recent years.

Well, it has served its purpose. It has provided the necessary ammunition to our enemies to intimidate us, with threats of hauling our President and others before the International Criminal Court. While the Western powers are threatening in this manner, India making no mention of this report, neither endorsing it, nor rejecting it provides us with a safety valve – the 13th Amendment. The Brahmins of Indian diplomacy, as pointed out by Izeth Hussein are certainly a clever lot. They have never pointed out their insistence to implement the 13th Amendment as having anything to do with MoonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s report. These are two independent phenomena with nothing in common but have become coterminous due to sheer fortuitous circumstances!

There is no need to go into the 13th Amendment, how it was forced down our throats, etc. But what surprises me is how we have over the years, come to accept it without a whimper, how we accept the canard that its legality should not be challenged, how it has come to be sacrosanct in the eyes of the people. We have forgotten the sordid details of its imposition, the low down tactics used, the blatant lies uttered, and how the entire nation was deceived and disgraced by a cunning old fox.

We have since then acted like the proverbial villager, who cries ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”kanawo, kanawoƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ after having got a cobra in his sarong. With the passage of time the cries have become less loud, and we have come to live with the cobra. However now with G. L. PeirisƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ obeisance to the creators of this cobra, it looks that it is ready for a final fatal attack. There seems to be very little chance of escape. We will have either to kill the cobra, or get killed by it.

The Sunday Island of 22nd May carried an article by a special correspondent-ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-India must stop interfering in our affairs in her own interestƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ – which is very relevant to the situation we are facing at the moment. ItƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s one of those few sensible articles to have appeared in the recent past. What he says needs to be taken seriously.

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-We must amend or repeal the 13th Amendment, whatever India and the Sambandans say. The 13th Amendment must be amended now, without further excuses or delay. The government has the majority to do so, and should make the transfer of power to the people at village, division, district and provincial level an absolute reality; the principle of subsidiarity.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

While endorsing wholeheartedly his suggestion, I cannot help feeling of having been let down, by the manner the government has responded to the immense faith placed in it by the people of this country. The President was bestowed absolute power, not once but twice. It was not meant for indulging in political cunning but to take the necessary measures, such as holding a referendum with a view to getting rid of this disgraceful amendment. That should have been the first act.

At this point it would be worthwhile to dig up and dissect this piece of legislation which has been taken for granted. We have done this in the report of the National Revival Commission sponsored by the PNM which was totally ignored by the powers that be (Probably as a result of having allowed the euphoria of victory go to their heads). This report was by Justice Rajah Wanasundera who was a member of that panel that was entrusted with finding out the legality of this amendment. He has discussed this aspect at great length in this National Revival Commission report.

It is not possible to present the entire argument. However a few quotations will help the reader to understand the raison d etre on which he had based his conclusions.

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-So in the result of the nine judges eight judges of the Court were equally divided four to four. The operative judgment constituting the decision of the Court hangs on Justice RanasingheƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s judgment. At a public ceremony soon after the judgment some persons alleged that Justice Ranasinghe voted for both sides. There is some truth in this because Justice RanasingheƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s judgment shows hesitancy, a lack of elaboration and divided views. His reasoning is convoluted and complicated and hangs the issue in doubt.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

(Justice Ranasinghe was made the Chief Justice soon after.)

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-So in the result five judges held that the Bills were unconstitutional with Justice Ranasinghe objecting to Article 154G(2) (b) and (3) (b). These five judges also held that the Provincial Councils Bill will also have to be considered only after the first Bill has been duly passed.

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-So in the final result the Bills were finally not approved and their unconstitutionality was upheld by a majority of the judges.

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Once a Bill is referred to the Supreme Court, the Supreme CourtƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s decision is binding and must be complied with. In this case the majority in the Supreme Court held that the 13th Amendment was not constitutional.

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-The Bills however were presented directly to Parliament bypassing the Supreme Court. The Bills that were then taken up for debate were identical with the previous Bills.

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Thus the introduction of the Bills in the original form direct to Parliament was a complete violation of the Constitution

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-However in this instance the UNP governmentƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”s leading protagonist Honourable Athulathmudali bulldozed his way through Parliament with a number of misleading statements, or trying to mystify the House by his verbal dexterity. He misled Parliament by leaving the issue of referendum in doubt till the last moment. At that stage, at the last moment, he moved an amendment to the provisions of the 13th Amendment and got it passed with only a two-thirds majority. This procedure was totally illegal and violating a number of constitutional provisions.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

Justice Wanasundara ends his summing up invoking the Parliament to take up this matter at a future date.

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-It would appear that Parliament itself is not precluded or prevented from reopening this issue and taking such actions as necessary which may be warranted by the facts.

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-If Parliament wishes to review this matter it can pass a declaratory law invalidating these Bills. If the speaker were to give his required certificate this would foreclose the issue and constitute a final disposal to prevent any future agitation in this matter. The effect of the action proposed above would be to declare and render the 13th Amendment and the Provincial CouncilƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s bills null and void, and to excise them from the Constitution so that Parliament would now be enabled to write on a clean slate.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

I think the time has come for us to take up this matter, which should be an all out cleansing process with no repetition of amendments – amendment to the 13th Amendment, etc. The basis for the diabolical devolution doctrine must be destroyed once and for all.

The bottom must be knocked out.

The devotees of devolution amidst us, I find are of the view that since repealing the 13th Amendment would impinge on the domestic politics of India, which is bound up with Tamil Nadu politics, it should not be touched; we have no right to desecrate what has been consecrated by our lord and master. We will incur his wrath. We will have to face dire consequences. We will have to face another parippu dropping episode.

We could not have survived for 2,000 years if we had acted with this mind set. Let me remind those devotees, that we are still not another state of India. We are not bound to work for the greater good of India, sacrificing our interests, nay our survival.

It is for the patriotic forces to rise up and get the government to hold a referendum immediately, to get the peopleƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s approval to discard this abominable piece of legislation. It is a matter of restoring the dignity and honour of the nation. No more prevarication, or political cunning is to be tolerated.

The time has come to knock the bottom off.