KAMALIKA PIERIS

The Indo-Sri Lanka Peace Accord of July 1987, led to the 13th Amendment to the Constitution and the Provincial Councils Act No 42 of November 1987.

JR Jayewardene is remembered with contempt as the person who got the 13^th Amendment accepted in Parliament. At the time, it was thought that this was forced on Sri Lanka by India, thanks to JR’s poor diplomacy. It is now found that this was the work of the USA, not India. USA was behind the India-Sri Lanka accord of 1987, said analysts.   This makes sense. The 13th Amendment is linked to Eelam. It benefits USA, not India.

The two Bills were placed on the Order Paper of Parliament on October 9, 1987. Having obtained the opinion of the Attorney General under Article 77, the President proceeded to invoke the jurisdiction of the Supreme Court under Articles 120 and 121 to determine whether the 13th Amendment required the approval of the people at a referendum by virtue of the provisions of the Article 83”

 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. There were 28   petitions against the two Bills, argued by eminent lawyers.  They argued; inter alia that this Bill affected the sovereignty of the country, its unity and its future.

Five of the nine judges, Chief Justice Sharvananda, Justices Colin Thome, H.D. Tambiah, J Atukorale, and KAP Ranasinghe found the Bills acceptable; while four others held that they were not acceptable   resulting in a wafer thin majority of 5-4 in favor of the two Bills.   Justice R. Wanasundera, L.H. de Alwis, H.A.G. de Silva and  J Seneviratne, said both bills needed  a  referendum. Justice Ranasinghe stated that two clauses required a referendum.      (https://www.scribd.com/document/263018852/In-Re-the-Thirteenth-Amendment-to-the-Constitution-2-Slr-1987#)

In 2017, Justice Wanasundera headed a Commission initiated by the Patriotic National Movement. In the report of this Commission,  Justice Wanasundera said, the so called majority judgment of the Chief Justice Sharvananda, Justice Atukorale, Percy Colin Thome and Thambiah along with that of Justice Parinda Ranasinghe (who, by and large agreed with them, but dissented on one important matter) the wealth of informed and learned opinion in legal circles is that the reasoning in those judgments are mistaken and patently erroneous.

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 said that the Provincial Council Bill should come only after the Amendment Bill became law.   Instead, the first bill, (13th Amendment bill) 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.   

If the UNP did not have a two thirds majority in Parliament in 1987, the Provincial Councils  would never have been imposed on Sri Lanka despite pressure from India because there would have been no way to amend the Constitution. The only reason why India succeeded in imposing its will on Sri Lanka was because the UNP government at that time happened to have a two thirds majority in 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.    It is interference in the internal governance of a country.

The Vienna Convention of the Law of Treaties (1969) which presumably both India and Sri Lanka would have signed clearly indicates the grounds on which the validity of the Accord may be challenged. In keeping with the doctrine of Sovereign equality, Article 52 of the Vienna Convention provides that a treaty procured by coercion of a state” will be void.

The 13th Amendment was dangerous, said critics. The 13th Amendment gave legal recognition to the provinces of Sri Lanka and also permitted them to merge.   It is directly linked to Eelam, they added. The 13th Amendment  is a prelude to the breakup of the country. Provinces could merge, which meant that Sri Lanka could break up into autonomous units.

The 13th Amendment cripples the state and makes Sri Lanka ungovernable, said critics. 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.   

Provincial Councils are on a par with the Parliament and there is a division of legislative power.”The existing structure is sufficient to be used by India and the Tamils to prise open the unity of this country and divide our country. Division of the country and creation of a separate Dravidian state is being done step by step covertly and incrementally, analysts said.

The limitations of the 13^th 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’ constitutions is now mooted to strengthen the 13 Amendment, remove barriers like the ‘concurrent list‘ and  make the Provincial Councils supreme and sovereign .

Most people, judging by comments in the media, are against the 13th Amendment and want it repealed.  In 2012 OPA 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).

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. .”

The most urgent and pressing duty on us is to remove these pieces of legislation from our statute book, said Gunadasa Amarasekera in  2017. There is a demand, at least in a section of the government, that the 13th. Amendment (13A) devolving powers to elected Provincial Councils should be repealed or substantially amended to bring about greater central control, said analysts in 2021.  ( Continued)