“THE 13TH AMENDMENT”
Posted on June 8th, 2016

KAMALIKA PIERIS

The 13th Amendment to the Sri Lanka Constitution owes its existence to the Indo-Sri Lanka Accord. Under the Accord the government of Sri Lanka had, inter alia,  to devolve  political powers to the   provinces. If the Accord was not signed India would intervene militarily. President J.R. Jayewardene was in no position to oppose. He had bungled Indo-Sri Lanka relations and antagonized the Indian Prime Minister.   He signed the Accord on 28 July 1987.

There was strong public opposition to the     Accord before and after it was signed. There were island wide protests   with black flags   and slogans expressing strong opposition to Indo-Lanka Accord, Tamil separatism and the UNP Government. Protestors had gone in procession to Panadura MP to request him not to vote for the 13th amendment. The day before the Accord was signed, 20,000 people gathered in Colombo to protest.  Police tear gassed, baton-charged and fired on the crowd. 21 persons died. An island wide curfew was declared.

When Rajiv Gandhi left Sri Lanka after signing   the Accord, Wijemuni Vijitha Rohana, 22 years, a naval rating in the honor guard at Katunayake airport, hit Gandhi on the shoulder with his rifle. Wijemuni   was expressing his resentment at India for intimidating Sri Lanka and using force to impose the Accord.  There was no serious injury.  Several leading lawyers appeared voluntarily for Wijemuni who was sentenced to six years rigorous imprisonment. He was pardoned and released in 1990.

Regardless of the protests, the 13th Amendment and Provincial Councils Bills were sent to Supreme Court to determine whether they conformed to the constitution and whether they needed a referendum. Five of the nine judges including Chief Justice Sharvananda, Justices Colin Thome and H.D. Tambiah found the Bills acceptable; while four others held that they were not acceptable ,  resulting in a wafer thin majority of 5-4 in favor.    Justice Ranasinghe stated that two clauses required a referendum.

Critics differ in their interpretation of this Supreme Court ruling. Some say that  the Supreme Court  sent three separate determinations, not a single‘collective’ determination, leaving Parliament to figure out what to do with them.   Others say that Supreme Court did not make any ‘determination’ at all,   but had sent recommendations for consideration of Parliament.  They note that Supreme Court did not specify the amendments necessary to make the Bills legal, either, though they were empowered to do so.

Critics declared that Parliament should    have prepared fresh bills,  taking care to omit the provision for a referendum and sent them back to Supreme Court. Instead Parliament approved the original Bills, (which called for a referendum),  saying that they only needed 2/3 majority, not a referendum.  No referendum was held. Supreme Court had also said that the Provincial Council Bill should come only after the amendment Bill became law.  Instead, the first bill, (13th Amendment) was passed in Parliament two days after the vote on the second (Provincial Council) Bill,   which sought to amend the first bill.

In this confused  manner, on 14 November 1987 the Sri Lanka Parliament passed the 13th Amendment to the 1978 Constitution of Sri Lanka and the Provincial Councils Act No 42 of 1987. Members of Parliament were put into a hotel the night before and taken to Parliament in a van from there, with President Jayewardene holding undated letters of resignation from them.  Had there been a second assembly (Upper House), this matter would have taken longer.  The Bills received the Speaker’s Certificate, preventing any further discussion of its validity within Parliament.

But the 13th Amendment continued to be discussed outside Parliament, specially the highly questionable manner in which it was passed in Parliament.  The Amendment was forced upon Sri Lanka by India, critics said, any statement made under duress, threat or compulsion is illegal and invalid in Sri Lanka law  and in the Vienna Convention on law of Treaties.

The 13th Amendment was dangerous, they added. It is a prelude to the breakup of the country. Provinces could merge, which meant that Sri Lanka could break up into autonomous units. The Provincial Councils will need to compete with each other, to attract foreign investment, creating greater disunity. The country would then become chaotic and ungovernable   and interested parties, such as India, could move in.

The Provincial Councils were to get the all-important subject of land, as well as police, local government and a host of other   subjects. Provincial Councils  also  had the right to pass laws (statutes). The intention was to transfer sovereign power to the Provincial Councils and weaken the central government.  This meant a separate near-sovereign administration for the north, considered a majority Tamil area and one of the   two homelands of the Tamils.

The central government could not pass any law relating to provincial matters   unless it was seen and approved by the Provincial Councils first. This was seen as outrageous. The Divineguma bill had to first be approved by the Provincial Councils before the central government could pass it. A bill on industrial effluents also had to go to every single Provincial Council first. The North Western Provincial Council had to be persuaded to approve the Bill for National Environmental Amendment Act 53 of 2000 though the Bill had nothing to do with the North Western province. .

The 13th Amendment is directly linked to Eelam. The 13th Amendment gave legal recognition to the provinces of Sri Lanka and also permitted them to merge.  The Indo-Lanka Accord of 1987 demanded that Northern and Eastern provinces be merged and a single Provincial Council be created. Accordingly, in September 1988 President Jayewardene, using emergency regulations,   declared the Northern and Eastern provinces to be one administrative unit administered by one elected Council.  The North- Eastern Province, with Trincomalee as its capital, was born.

This ‘Eelam’ had been planned in advance. M Sivasithamparam, A. Amirthalingam, R. Sampanthan of the TULF   wrote  to Rajiv Gandhi, Prime Minster of India,  in 1987, drawing attention to the discussion between government of Sri Lanka and the TULF, in 1986, where it was agreed that  the Provincial Councils would have ‘ near absolute’ legislative power and the Governor would be a ceremonial head.  They had expected a single administrative unit of north and east with legislative and executive powers similar to the powers given to a state in India especially in executive and legislative matters  (Sunday Leader. 17.2.08 p 12).

Northern Province Chief Minister, C.V.Wigneswaran, stated in 2016, that the 13 Amendment, when conceived in 1987 was intended to provide for a merged northern and eastern province by the Government of India on behalf of the Tamils of the north and east in its negotiations with the Government of Sri Lanka.’(Daily News 20.1.16 p 14)

The merger of North and East was bitterly opposed by those against Tamil separatism. The combined North Eastern Province occupied one fourth of Sri Lanka.   This merger was to be temporary until a referendum was held in the Eastern Province on the matter.  This was to be held by 31 December 1988, but the Sri Lankan president could postpone the referendum at his discretion.  The referendum was never held.  The President of Sri Lanka annually issued a proclamation extending the life of the Council.  In 1990, Varatharajah Perumal, chief minister for the North-East Provincial Council declared a Unilateral Declaration of Independence (UDI) and fled to India. President Premadasa  dissolved the Council. The North-east Province was ruled directly from Colombo thereafter.

In 2006, Janatha Vimukthi Peramuna filed petitions against the merger, requesting a separate Provincial Council for the Eastern province.  They said that the merger was illegal. The relevant clause in the Provincial Councils Act had not been amended and the referendum never held.  Supreme Court ruled that the merger was unconstitutional.  The North-East Province was formally de-merged into Northern and Eastern Provinces on 1 January 2007.

Most people, judging by comments in the media, are against the 13th Amendment and want it repealed. Jathika Sangha Sammelanaya, All Ceylon Buddhist Congress and   the Collective for the abolition of Provincial Council systems (CAPCS) formed in 2013, say 13th Amendment was imposed on the country from outside. It challenges the supremacy of Parliament.  They are opposed to the granting of land and police powers to the provinces, and the power to merge provinces. .”

OPA has called for the repeal of the 13A, saying Sri Lanka did not ask for it, the PC system has totally failed and only added a financial burden, and also administrative confusion. Provincial Councils are a temptation to separatism, 13A it a threat to sovereignty, independence and unitary status. Neither the government nor people wanted it  (Island.  1.12.12. P 4).

The limitations of the 13th Amendment have been noted. The Provincial Councils cannot go beyond the country’s constitution.  They can function only ‘subject to the provisions of the Constitution’. Provincial statutes could be declared void by the law courts if they are inconsistent with Constitution.  The President of Sri Lanka can take control of a province, if there is mismanagement. Further, Article 157A of the Constitution prohibits a wide range of acts which relate to the creation of a separate state within Sri Lanka. Chapter 6 of the Penal Code gives a list of offences against the state prohibited by the Penal Code.   A  ‘new’ constitution is now mooted to strengthen the 13th Amendment, remove barriers like the ‘concurrent list‘ and  make the Provincial Councils supreme and sovereign. http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=141253

5 Responses to ““THE 13TH AMENDMENT””

  1. Dilrook Says:

    In addition to this, we had the golden opportunity to abrogate the failed 13A in 2010. However, in 2009 Sri Lanka’s president and UN chief made a joint statement to implement 13A and made a commitment to fully implement 13A to the UNHRC.

    These voluntary commitments destroyed the opportunity to claim duress and undue influence and remove 13A. Thanks to these commitments to world bodies, we are stuck with 13.

    We must not forget these follies as well.

  2. mario_perera Says:

    “However, in 2009 Sri Lanka’s president and UN chief made a joint statement to implement 13A and made a commitment to fully implement 13A to the UNHRC.” – Dilrook

    Not just 13A. He said 13A +. He contracted to go beyond the Rajiv-JR agreement.

    And there the saviour was transformed into betrayer.

    Mario Perera
    Kadawata

  3. anura seneviratna Says:

    Mario is right, sadly the saviour became a betrayer and he is responsible for all the danger the country is facing today.

  4. Ancient Sinhalaya Says:

    Traitor thambi mudiyanselage alugosu (to Sinhalese only) jr introduced 13 to divide Sri Lanka. He was a traitor
    of the highest caliber. Now all these chief ministers, pigneshwaran etc. want a separate country. Sinhalese-
    hating, Sinhalese-murdering, Buddishm-destroying, Sri Lanka destroying UNPatriotic party is ruling Sri Lanka
    today with puppet maru sira aka vairapala sorrysena. So anything is possible for the traitor foreigners, tamils
    and mussies. Catholic traitor chief pol pot ponil wickramasinhalakiller wants to outdo his traitor alugosu
    uncle. Traitor pol pot ponil wickramasinhalakiller doing a very good of destroying Sinhalese, Sri Lanka and
    Buddhism.

    He knows he is untouchable. He killed so many Sinhalese youth at Batalanda Camp with his
    catholic buddy policemen. No punishment. He stole 5000 billions from CB with his catholic buddy mahendran.
    No punishment. He sent millennium city intelligent officers to catholic tigers of tamil drealam bullet. No punishment.

    So he knows he is untouchable. That’s not all. There are still a lot of Sinhala modayas believing this murderous
    tom pachaya and vote for him. No wonder Sinhalese have become the butt of jokes thanks to those traitor
    Sinhalese donkeys. The traitor lot can’t understand a simple truth and helping this murderous tom pachaya
    to destroy Sri Lanka, Sinhalese race and Buddhism.

    In an unrelated story to 13, 13a, 14, 15, 16, 17, 18, 19, … (this is what you get with traitor UNPatriotic party
    since they dance to west, india and diasporats tune. With China you don’t get any of those. But some Sinnhala
    modayas don’t understand, since they are real modayas).
    See what happened to old Buddha statue at the temple trees. I have no doubt pol pot ponil wickramasinhalakiller
    damaged it on purpose to give publicity. What some Sinhala modayas going to think, hey look temple trees is a
    devout Buddhists’ place because he brought the statue there. If he just returns it, nobody going to know. So make
    some headline news. Drop it on to the floor. Whole country knows! Tikiri mole! He is not just murderous, he is
    crafty as well, just like his traitor alugosu (to Sinhalese only) fox uncle thambi mudiyanse. One thing is guaranted
    with traitor UNPatriotic party. Pol pot ponil wickramasinhalakiller will destroy Sri Lanka, Sinhalese race and
    Buddhism. 5 years? 5 years is plenty for the terminator (of Sri Lanka, Buddhism and the Sinhalese race).

  5. plumblossom Says:

    We do not need provincial councils which only promote separatism. The provincial councils only duplicate the already existing system of ministry, district secretary, divisional secretaries, grama niladhari system which has functioned for decades. In addition, there are the municipal, urban councils and pradeshiya sabhas who elect their officials to ensure that there is local government representation and to ensure that local matters are dealt with effectively. The ministry, district secretary, divisional secretaries, grama niladhari system is how government plans get implemented at the district, divisional and the grama niladhari level. The only thing the provincial councils do is duplicate this already existing system and is totally unnecessary. Since Sri Lanka is a small country, what is agreed at the parliamentary level in terms of plans can be implemented islandwide via the ministries. If anyone in any province wants to suggest anything innovative, they can do so via their MP at the parliamentary level. A small country such as Sri Lanka needs a strong central government and just one plan for the entire island to move forward. For this to happen, the existing ministry, district secretary, divisional secretaries, grama niladhari system is sufficient. At the local level there are the municipal, urban councils and the pradeshiya sabhas to take care of local matters. The provincial councils are a huge waste of money and only promote separatism.

    Sri Lanka has been a Buddhist country since 300BC. Sri Lanka has provided an enormous service in the preservation and propagation of Buddhism around the world, especially to other Asian countries centuries ago, even millennia ago. Therefore, the state religion should be Buddhism for the foreseeable future. The unique identity of Sri Lanka is precisely due to Buddhism which is the prevalent religion of the country. The US, UK, the EU, Norway, Sweden and Canada who do not like this or the TNA separatist terrorists who do not accept this should be told these facts. If the TNA separatist terrorists want an alternative law to prevail, they can kindly leave and go live in any other country which is more to their liking.

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