By Gamini Gunawardane

This is a reply to the article by Mr. .M.A. Sumathiran that appeared on page 8 of the daily News  on 13^th Friday. I sent this reply to the Daily News three days ago, but it has not appeared on that paper so far.  Hence I decided to send this over to the Lanka web. In his article Mr. Sumanthiran       states inter alia: The 13^th Amendment is part of the Constitution –which is the supreme law of the country.-and the previous government was in blatant violation of the Constitution in its refusal to implement. Detract from the fact that it was in fact refusing to in full the highest law of the land, it created a great controversy concerning the 13^th amendment, particularly with regard to the land and police powers.”

This is not an accurate statement for the reason that, the 13^th Amendment was not implemented inclusive of police and land powers not only by the previous government but by all previous governments, even by the JRJ government which first adopted such an obnoxious law and that includes the present government so far, in not listing it as a priority item in the 100 days programme. There is a reason why successive governments did not give effect these two provisions. I shall explain this as we proceed.

The 13^th Amendment has a disgraceful history. It is something that was forced on this country by a foreign country- India. It sparked a violent reaction by the JVP and by the SLFP who opposed passing this legislation. It resulted in so much death and destruction that even the government of the time was in grave jeopardy. It was almost tottering at one stage. The government MPs who were forced to vote for this amendment were made to reside in a hotel the previous night, were herded in a bus to Parliament, so that no one could escape! In any case, they had no choice because their undated letter s of resignation were in JRJ’s pocket! Yet, one minister resigned in protest.  It was then well known that JRJ himself did not did not want this amendment, but he wilted under Indian pressure. All this goes to show that this was an piece of legislation that no one including the LTTE the accredited sole authority of the Tamils. A Constitution should reflect the will of the people and not that of an alien government.                        

When this Bill went up to the Supreme Court for determination whether it was a matter that should go for a Referendum, in a split decision, 4 Judges held that it should not be passed without it be sent for a Referendum and  5 Judges held that it need not. Thereupon the government, with some misplaced advise from the then Attorney General Siva Pasupathy, made some minor adjustment to the Bill & had it passed in Parliament circumventing a Referendum. Thus, the passage of this bill which was of crucial importance to the nation passed dishonestly remains illegal and a fraud perpetrated on the people of this country. Hence could any sensible government proceed to further act on such fraudulently passed law merely because it appears on the Legislative Enactments as an amendment to the Constitution?

Yet, the former government proceeded to facilitate the establishment of the provincial councils in the Eastern Province no sooner than the peace was restored there. And it provided the provincial council in the Northern Province once it was satisfied that satisfactory degree of peace and security was in place there. No other government before them could do that. Hence some credit is due to them, when in fact what they should have done is to have gone into a Referendum to correct the error committed by the JRJ government.

The reason why all governments so far did not implement the provision for police land powers to the provinces is primarily because it would undermine the concept of Unitary State which is a fundamental feature of 1978 Constitution, as it would vitiate the Unitary character of the country de facto. It may be recalled that the first Chief Minister of the North Eastern council unilaterally declared that part of the country a separate state. Thus, this is only a short list of the obnoxious character of the 13^th Amendment, summarized for the want of space here.

Mr. M further goes on to say. The Indo-Sri Lanka- Accord is a bilateral international agreement between two sovereign countries and it behoves the signatories to honour every obligation contained in it. No country can avoid implementing any provision by even citing its municipal laws –according to the law of treaties”

 . The Indo-Sri Lanka- Accord is a bilateral international agreement two sovereign countries”, less we speak of this the better. There is no humiliation that a self–respecting sovereign nation could suffer, worse than this so called bilateral agreement”. This is more like an ‘agreement’ between a country that has been defeated in war and the dictact by vanquisher!  I described in brief above the circumstances of signing this so called accord between JRJ and Rajiv Gandhi. An abject submission. That is in moral terms. Factually, none of the obligations of India were honoured. At least they failed to achieve them. Ultimately Sri Lanka had to fight the Terrorists on its own to disarm them by herself in order to bring lasting peace to country.  An accord to be valid has to be honoured by both signatories. Sri Lanka has fulfilled almost all what she had undertaken to do. A treaty cannot be valid if only one party to the treaty is to oblige. In any case, why should one country come to an agreement on how it would deal with one’s own people? It is the duty of all people in a country to come into the main stream. Do we tell India how she should deal with the Kashmiris?  Thus the Accord and the 13^th Amendment to the Constitution is a piece of legislation thrust on this country under duress when nobody here wanted it, particularly Prabhakaran who went on to fight the IPKF to frustrate their goal. Hence it has no validity today.

In any case, at best, this so called ‘accord’ was purportedly meant deal with a terrorist situation in this country, and more specifically to wean Prabhakaran away from terrorism. Now that that terrorism is wiped out by the Government of Sri Lanka by herself, this accord has no more validity. It has no relevance today. Therefore our position is that the so called ‘Indo-Lanka Accord ’ is not valid de facto.

A further contention of Mr. M is that, The 13^th Amendment is for a measure of devolution to the Provinces through Provincial councils. The powers devolved however, are extremely limited.”

The demarcation of this country into 9 provinces itself is a misnomer today, effected by the colonial power two centuries ago, to suite their convenience, in order to keep the people of this country apart, to isolate them in different localities. Today a different demarcation is required to prevent different people from becoming isolated groups which is counterproductive in bringing all communities to live together as one community.

In any case, most other provincial councils have not complained of having less devolved powers. So why is it that only NPC is griping for more power? This question is more relevant today when it is reported that the NPC is not exercising even the powers that are already devolved to them. Instead they are more occupied with issues outside the purview of the Provincial Councils such as passing absurd resolutions on alleged genocide of the Tamils by all governments since 1948!

Mr. M goes on to refer to various undertakings made by the Ministers and other government representatives which he says have been made to India has, not been honoured.  My question is why should India be meddlng with Sri Lanka to interfere into the internal affairs of this country which is a sovereign state? We do not interfere into Indian affairs, do we? As regards our problems with the UNHRC, we all know that purpose of the nations that are interested in these maneuvers, are motivated to bring pressure on us to submit our sovereignty to their wishes.

Mr. M finally states that, …….the government must start a dialogue  with the Tamil National Alliance with regard to a permanent solution to the Tamil National question.”

As far as we understand, the so called Tamil National Question is nothing but the demand for a separate Tamil state or equivalent of that in a Federal set up, for the moment, which is against the Unitary Concept given in the Constitution and which is in violation of the 6^th Amendment.  .