Why 13A should be repealed – II

By Nalin de Silva

The 13th Amendment was imposed by India on us following the infamous Indo-Lanka Accord signed by J R Jayewardene under duress amidst parippu drops. Rajiv Gandhi bullied Jayewardene with his gunboat diplomacy by using High Commissioner Dixit, who thought that he was the viceroy here. India did not act alone as it had the support of the West much to the disappointment of Jayewardene. India and west had been involved in training Sri Lanka’s terrorist groups. When the 13th Amendment was referred to the Supreme Court four judges were of the opinion that the Bill was in agreement with the Constitution while four others ruled that it violated the constitution. The judgment of the remaining ninth judge was interpreted to claim that the Bill was in agreement with the Constitution and the 13th Amendment was presented to Parliament giving the impression that the Bill was consistent with the Constitution. Mr. Raja Wanasundara has explained what happened and it appears that the 13th Amendment Bill was tabled in Parliament in violation of the Constitution. In my opinion it was illegal to do so.

The Bill was not discussed by the people and the parliamentarians were transported from a hotel in Colombo to Parliament to vote for the Bill. The then Prime Minister and several other ministers were against the Bill but there was nothing much that they could do effectively.

In any event it is said that the 13th Amendment was introduced to address the grievances of the Tamils caused by the "Sinhala governments" after 1948. But, the 13th Amendment attempted to solve only the ‘grievances’ of the Tamils living in the Northern and Eastern Provinces. The Tamils lived outside those two provinces. In any event those who claim that the "Sinhala governments" are responsible for the grievances of the Tamils after 1948, should explain why Chelvanayakam during the debate on the Throne Speech of the first Parliament in 1947 itself said that if the Sinhala people could gain Independence from the British the Tamils should be able to gain Independence from the Sinhalese. They should also explain why Chelvanayakam established Ialnkai Thamil Arasu Kadchi (Lanka Tamil State Party) in 1949 for the specific purpose of creating a Tamil state. It is clear that at least as far back as 1947 Chelvanayakam had ideas of "gaining independence" from the Sinhalas and forming a separate state. It has to be mentioned that Suntharalingam had spoken of Eylom long time ago. They should also explain why G G Ponnambalam wanted fifty – fifty in the State Council making the percentage of the Sinhala members of the council less than fifty, and agitation by the Ponnambalam brothers to reduce the number of Sinhala members of the Legislative Assembly so that the Tamil members could dominate the proceedings and remain as leaders of the so called Ceylonese nation, during the latter part of the nineteenth century and the early part of the twentieth century. It is clear that the injustices, grievances, aspirations story does not hold water. The communal politics of the English speaking Tamil Vellalas began almost from the commencement of the Legislative Assembly with the connivance of the English governors and other British officials. The English wanted to weaken the majority community who alone had fought against the colonialists at least from 1817. When after universal franchise the Tamil leaders began to lose their privileges they with the help of the English interpreted the loss of their privileges as injustices caused to the Tamils in general. Chelvanayakam from the beginning realized what was happening and wanted to establish an Eelam (an independent Tamil state) as far back as 1947. He knew that the English speaking Tamil Vellalas alone could not achieve what he wanted and tried to organize not only the Tamils but the so-called Tamil speaking people under one umbrella.

Even if one believes in the injustices, grievances, aspirations one has to consider the negotiations, operations as one system without treating so-called political solutions and military solutions as two opposite poles. Military solutions as we have been arguing are also political solutions, and Nandikadal was the final solution given to a problem that had existed for almost two hundred years. The final political solution overrides all the other solutions arrived at through peace talks, negotiations etc., including the 13th Amendment, which has been defeated politically but it hangs on legally as law always lags behind politics. The legislature has to make laws that suits the politics and the 13 A has to be repealed. When that amendment was introduced and passed in Parliament the political situation was different. India had the upper hand with the support of the West and laws were made to suit the then existing political balance. Even Mahinda Chinthana drafted in 2005 addressed the then existing political situation with the peace vendors of the NGOs and Norway calling the tune. What was needed was a political solution, and at that time emphasis was laid on so-called peace talks. As far as the so-called national question is concerned Mahinda Chinthana has become outdated since ‘Nandikadal’.

There has been a lobby that pressed for a political solution through armed operations and gradually the government realised that military operations should take precedence over everything else in arriving at a political solution. Nandikadal was the climax of all these and now it can be reversed only through armed operations again or by defeating the present government by hook or crook. Various attempts have been made by external forces to topple the government first creating instability through various springs, Katunayake incident, FUTA strike and "executive – judiciary" clash being examples.

There is no going back to Thimpu from Nandikadal and 13-A has to find its way to the dust bin of history sooner or later. After the so-called World War II, if some Nazi remnants had asked Churchill for talks to decide the fate of Europe in particular and the world in general, the latter would have given a reply in choice language. On the other hand, had Prabhakaran won finally with the assistance of the West what would have been the result? Would anybody have asked Prabhakaran to settle for 13-plus?

The Divineguma bill has only revealed that the 13-A is not consistent with a unitary state. Whatever has been said by western political scientists a unitary state should have one and only one institution that could make legislation for the entire country without any hindrance. The institution concerned should only be prevented from making laws that will deny the sovereignty of the people as stated in the constitution. It is clear from the judgment of the Supreme Court on the Divineguma Bill that Parliament does not have the power to make legislature valid for the entire country as the nationalist forces have claimed all along. This implies that the present Constitution is not unitary though ironically in my opinion, the unitary character was removed illegally, and the unitary state has to be restored without any delay. The talks by the Tamil racists and the NGO lobby on the intervention by the so-called international community have to be ignored as was done during the humanitarian operations. If the majority of the people are with the government there is nothing that the so-called international community could do against the will of the people.

මහාචාර්‍ය  නලින් ද සිල්වා

The Island

2012-10-31

October 30, 2012, 5:08 pm 

Why 13A should be repealed - I