The Secretary to the Select Committee of Parliament to Recommend and Report on Political and Constitutional Measures to Empower the People of Sri Lanka to Live as One Nation
Parliament of Sri Lanka
Parliament of Sri Lanka
Reference to the request made by the Select Committee of Parliament on the 10th July, 2013, to make representations with regard to (i) preserve and promote their respective identity and live with dignity and security as one Nation, (ii) enhance the unity of the people of Sri Lanka, and (iii) empower the people and the country to promote social, economic, political and cultural development, I make the following presentation.
The 13 Amendment to the Constitution of Sri Lanka should be completely and wholely removed for the following reasons.
The 13 th Amendment to the Constitution of Sri Lanka could be looked at from two different points of view.
(i) as a part of the Constitution of Sri Lanka, without taking into account how and when it was introduced in to the Constitution, and
(ii) as a requirement under the Indo Sri Lanka Peace Accord signed in July,1987, to include it in the Constitution of Sri Lanka as the 13th Amendment in return for India to disarm the Militant groups and the LTTE terrorists, and establish peace.
Hence, under item (i) there is no problem in keeping or removing the 13th Amendment considering it only as an Amendment to the Constitution. Sri Lanka had three Constitutions since its Independence. The Present Constitution was promulgated in September,1978. It has 18 Amendments. If the circumstances necessitate, the Parliament could remove the 13 Amendment by a mere two third majority in the Parliament or seek a mandate from the people to remove it.
All promulgations of a Constitutions, or amendments to the Constitution of Sri Lanka could be carried out by the Parliament of Sri Lanka accept where it is necessary to call for a referendum of the people. No foreign country has the right to intervene and dictate in the preparation of a Constitution, promulgation or bringing in Amendments to it.
Under such circumstances what we do with the 13 Amendment to the Constitution is the business of Sri Lanka and not that of any other country in the world. The Parliament could modify the 13 Amendment, or remove it completely from the Constitution according to the powers vested in it.
But under item (ii) referred to above, if the 13th Amendment to the Constitution of Sri Lanka were to be considered a part of the Indo-Sri Lanka Peace Accord, then the question arises as to whether there is a legal and a valuable reason to leave the 13 Amendment in the Constitution of Sri Lanka after March, 1990, when the last IPKF contingent left Sri Lanka having lost 1155 of its cadre and having failed to settle the on going terrorism or disarm the LTTE and the different Tamil Militant groups under the terms of the India Sri Lanka Peace Accord- without giving satisfaction to the Peace Accord by India.
The deployment of an Indian Peace Keeping Force to disarm the LTTE and the different Tamil militant Groups and establish peace by India, in return for Sri Lanka to enter the 13 Amendment into the Constitution of Sri Lanka and establish Provincial Councils were the requirements under the Peace Accord entered into by Rajiv Gandhi and JR Jayawardhana signing the India Sri Lanka Peace Accord on the 29 July,1987.
Unfortunately when India withdrew its IPKF having failed to satisfy the Indo Sri Lanka Peace Accord, Sri Lanka had already satisfied its part of the Peace Accord by introducing the 13 Amendment in to the Constitution and establishing Provincial Councils, believing that India would be able to disarm the LTTE and the Militant Groups to end terrorism and establish peace.
However, Sri Lanka did the mistake of not making provisions in the Peace Accord to hold the insertion of the 13 Amendment into the Constitution of Sri Lanka until the IPKF showed to the satisfaction of Sri Lanka that it was able to carry out its promise to disarm the LTTE and the Militant Groups and establish peace. The result of that failure was that Sri Lanka satisfied its part of the Accord well before IPKF proved not only that it was incapable of disarming the LTTE, but also that the LTTE terrorists were a force far stronger than it expected.
The end result was that the Indo Sri Lanka Peace Accord was breached by India without giving satisfaction to the Accord , with Sri Lanka having an unwanted 13 Amendment left in its Constitution.
Therefore the Indo Sri Lanka Peace Accord entered into by Rajiv Gandhi and JR Jayawardhana was revoked in March, 1990, by one party to the Peace Accord-namely India having failed to give satisfaction. Therefore the Indo Sri Lanka Peace Accord signed in July,1987 is a defunct instrument without any legal value, and logically the 13th Amendment which is an off shoot of that Accord is now an illegal instrument which has no place in the Constitution of Sri Lanka.
If in June,1987 India did not intervene by dropping relief food supplies to the terrorists held in siege by the Sri Lanka Armed Forces, the terrorists would have been defeated and terrorism in Sri Lanka would have been terminated in 1987.
But because of the Indian intervention the terrorism continued its destructive presence for 22 long years. Therefore, the Indian Government is responsible for all those loss of lives, wounded soldiers and civilians , damages to material and the economic cost of war during that period. Sri Lanka Government therefore has a legal right to claim compensation from India.
It is clear that Since 1987 India had acted in bad faith vis à vis Sri Lanka with an ulterior motive. It is an open secret that India took an active role in the defence of terrorism in Sri Lanka. It was made evident when India sent a convoy of unarmed ships in June, 1987 to Jaffna, followed by airdropping relief supplies to terrorists in siege.
Sri Lanka should also not forget that in NJune,1987, the Indian External Affairs Minister K.Natwar Singh had summoned the Sri Lanka High Commissioner in New Delhi to inform him of India’s decision to air drop relief supplies to the rebels(terrorists) and had threatened that if the Indian Operation was hindered in any way India would launch a full force military retaliation against Sri Lanka. It was after that Sri Lanka was forced to sign the Indo Sri Lanka Peace Accord on the 29 July, 1987.
Has India changed since then ?
But Sri Lanka had always acted in good faith despites India’s hidden motives.
India fooled Sri Lanka to accept the 13th Amendment prepared by Indian legal Officers to facilitate the terrorist to eventually establish a separate Eelam State by strengthening their hold in the Provincial Council once established. For that purpose North and the Eastern Provinces were merged into one under the so called Peace Accord.
Sri Lanka naively included the 13th Amendment into the Constitution in good faith in order to get the Indian Peace Keeping Force to disarm the LTTE and the Tamil Militant Groups and establish peace as India had agreed under the Peace Accord. India however failed to keep its part of the agreement and abrogated it by pulling out the IPKF in 1990.
India cannot now claim any legal right under the defunct Peace Accord to intervene to demand Sri Lanka to implement the 13th Amendment. The 13th Amendment is an appendage that remain from an rescinded accord and has no legal value. The Sri Lanka Government need not turn to India to have its consent to remove the unnecessary vulgar appendage-a symbol of shame, the 13th Amendment.
The government may get a legal opinion and remove it by a resolution in Parliament failing which it may call for a referendum.
India has to stop its continued aggressive demands with regard to the 13th Amendment as India has lost its right to make such demands as far back as in 1990, and implementing or not implementing the 13th Amendment is now a matter which has to be decided by Sri Lanka alone, without India’s unnecessary interference.
However, Sri Lanka has the legal right to demand India to pay compensation for the breach of the Peace Accord through India’s failure to give satisfaction to the Accord, resulting in the loss of human lives, disability to persons and damage to property caused from 1987 to 2009 through terrorism, plus the economic cost of the war against terrorism to Sri Lanka which is estimated at USDollars 200 billion.
The 13th Amendment has no relevance to Sri Lanka in its present context, therefore it has no reason to remain as an Amendment to the Constitution of Sri Lanka. The Government of Sri Lanka is making considerable effort to reconcile the Communities eliminating even the majority and minority concept of the people. The Tamil people have to be made to accept themselves as a part of the Sri Lankan people and unite with the other Communities in a Unitary Sri Lanka. That would not be possible under the Provincial Council System established under the 13th Amendment which will only perpetuate separatism.
Sri Lanka should set up a system of Regional Administration in keeping with its own cultural and social background with a view to eliminate Communal Separatism. Such a system of Administration should stretch from village level to Government as the Centre. In it all Communities should be brought together preserving their respective identity and assuring security from village level on wards. Such a system will promote unity of the Communities that will be able to settle differences at village level. It will also pave the way for the people of Sri Lanka as a whole to promote and participate in social, economic, political and inter cultural developments.
These positive developments will not be possible under the Provincial Council System which has created an intermediate system of Administration which is akin to a Parliamentary System, distancing the Provincial Councillors from the ordinary mass of people , unable to integrate into the different social levels of the society because of a pseudo sense of a higher economic and social status.
The 13th Amendment should therefore be removed completely from the Constitution of Sri Lanka, which would enhance the Independence of Sri Lanka as a Sovereign State without India claiming a right to intervene in view of a breached, and now defunct Peace Accord to which India was a party.
Therefore, it is my opinion that in the interest of our people who should live in dignity and in security amoung their fellow country men in peace and harmony, the 13th Amendment to the Constitution of Sri Lanka should be removed wholely and completely leaving no trace of it by a two third majority in Parliament, or by a referendum of the people.
In conclusion I would like to remind the Select Committee of the Parliament that the President since his election, without the support of the UNP and the rest of the Opposition, had determined and carried out under immense difficulties tasks that none other political leader of Sri Lanka had dared even attempted, and achieved success.
Therefore, in the removal of the 13th Amendment from the Constitution too he need not depend on the support of the UNP, the TNA and other Political Parties which have only restricted self interests. The President should without hesitation do what has to be done in the interest of the people and the country as he has already proved he is capable of doing, and remove the 13th Amendment to the Constitution and face boldly any consequences for which he will have the support of the people.
I pray for the President, the people and the Country the blessings of the Triple Gem
Yours Sincerely ,