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Thirteenth Amendment is Unconstitutional – a Reply

Dilrook Kannangara

The Thirteenth amendment to the 1978 Constitution which has been plastered 17 times with 6 more failed attempts is indeed unconstitutional. The Thirteenth amendment was passed under duress, threats and undue influence on the government of Sri Lanka in 1987 and this is enough reason for its invalidation. Secondly people took to the streets; some even took their lives in protest of the forced legislation. However, people were not consulted at all, not even civil groups were consulted on the appropriateness of this piece of law that would radically change the pillars of sovereignty of the island nation forever. The Thirteenth amendment was adopted by a nation under siege when Indian warships surrounded the island and people were locked in their houses by imposing regular curfews. This was the grim situation outside the North. The situation in the North was much worse. LTTE terrorists were basking in victory as Indians intervened in Sri Lanka bringing all military operations into a standstill on top of a few victories it registered over the security forces.

Unfortunately the nephew of the great constitution maker did the same thing in 2002; India was replaced by Norway. The then prime minister signed an agreement surrendering Sri Lankan interests in the North-East at the feet of the LTTE leader. Let alone the legislature and the people, even the Cabinet and the President were not informed of the CFA. The first surrender by JRJ was superseded by the second surrender by his nephew. Three Sri Lankan administrations put up with the CFA until it was given a decent burial in 2008 amidst strong protests and begging pleas from the LTTE. The grand Vanni brothel regularly patronised by foreign interferers suddenly closed down and within weeks Sri Lanka started to feel the difference by way of a sudden drop in the arrival of foreign interferers. Even the few who come here after the CFA were not allowed to visit the ‘de facto’ rulers of the ‘de facto’ separate state that were recognised under the CFA.

The third reason is that the election, rather the non-election of the parliament that passed the thirteenth amendment was invalid and illegal in a democracy. Sri Lanka being Asia’s oldest democracy held elections to elect legislators regularly until 1982. The general election that was due that year was never held! Instead the President re-elected all the parliamentarians sans a few who were elected in the previous (1977) election! Sri Lanka is the only country to replace a general election with a referendum! But alas! No referenda for more relevant issues such as the Thirteenth amendment. Obviously the electors who were elected by the President in 1982 started serving the President who elected them instead of serving the people.

Fourth reason of invalidity stems from the fact that the amendment was never discussed by the public, intellectuals, civic groups, religious leaders, politicians, journalists, defence authorities, lawyers, political analysts and the like. In stark contrast devolution proposals in the late 1990s and 2000 were made public and widespread public debates on the proposals were held. This not only enriched the proposals but also allowed a platform to look into the broader issues of conflict resolution.

Fifthly the Thirteenth amendment and its illegitimate offspring actively reversed the democratic will of the people. For instance people voted for a state and a national language in the 1950s using their democratic rights. Bastardly pieces of law connected to the Thirteenth amendment introduced other languages as national languages without the consent of the people! What’s worse is that the Commission appointed in this regard was headed by a communist who suggested that everyone be taught Tamil! What an idiotic Mahadenamutta suggestion? How about helping only 10% of the total population numbering only 2 million learn Sinhala – the elected and selected national language - instead of inconveniencing the whole 20 million population?

This brings us to the democratic-communist divide that has played hell with the problems of Sri Lanka. Lanka should firmly decide what ideology it must follow to solve its problems and there are only two left - the democratic ideology and the communist ideology. A mixture of the two will only result in a political mule that has no faculty to extend its survival. It may be bad karma on the part of all Sri Lankans that both the Official Languages Commission and the APRC were headed by communists.

The communist rule of thumb on official/state/national languages goes as “one national language two nations; two national languages one nation”. In yet another strike of misfortune this concept got popular in Sri Lanka although it was the unpopular choice in the world scene. Only a few communist countries like Yugoslavia, Czechoslovakia, etc. managed to sustain this. The democratic rule of thumb is “one national language one nation; two national languages two nations”. Almost all democratic countries in the world numbering more than 150 follow this principle successfully plus other stable countries like China. Then there are democracies that followed the communist principle on the national language like Pakistan that got split into two along the two national languages.

When Yugoslavia and Czechoslovakia embraced democracy they split into pieces along the national languages. Even a diehard democracy like Canada is at the verge of disintegration along French/English speaking states thanks to its unofficial adoption of a second national language. Although a definite split was averted by a very narrow margin at the last referendum that is not the end of the matter. Spain, Russia, China even Kosovo run the risk of similar disintegration. If Sri Lanka had followed the example of most democratic countries with only one official and de facto national language, issues of disintegration would have never arisen and there would be no need for a ‘linking language’ as people would be fully integrated into one nation. However, the importance of English cannot be underestimated given that it is the language of the business world. The APRC which is following the ‘middle path’ approach is surely going to create malice and muddle with its mixed ideologies.

Unfortunate supporters of the thirteenth amendment state that it is a step towards solving the ‘ethnic’ problem which in turn is the root cause of terrorism in Sri Lanka. But they fail to admit that things have become much worse after the Thirteenth amendment! Another important point they miss is the fact that the conflict in Sri Lanka must be solved in a manner beneficial for Sri Lanka; not Tamil Elam/India/Norway/Japan/EU, etc.

Therefore it is fair to conclude that democracy was hijacked on five counts to squeeze through the ill-fated Thirteenth amendment into this sovereign nation’s legal system. The APRC that suggested the ‘full implementation’ of the Thirteenth amendment also followed the same shrewd approach. After wasting years, losing the support of peoples’ representatives indicating more than 60% of the population, getting rejected outright by the LTTE and losing face many times for ridiculous proposals the APRC finally came up with the safe option – fully implemented the already enacted 13th Amendment. Any other proposal would have required the sanction of elected representatives and the people which sanction is definitely not forthcoming as people are widely opposed to racist/racial/communal ‘solutions’. Therefore the APRC is merely a new marriage broker assigned with the task of marrying the ravished and barren 13th amendment to the unconsenting groom - the people. The President is throwing his full weight behind it and the Opposition Leader has joined him.

The government must take immediate steps to annul the Thirteenth amendment just as it did with the CFA. Piecemeal dismantling will not work as any residue can still spread the separatism cancer. This will put an end to foreign sponsored separatist campaigns and the international community will be forced to recognise the interests and aspirations of Sri Lankans.

A solution that champions the interests and aspirations of Sri Lankans need not be forcibly administered to them as they would take the lead in demanding such a solution from the government! Obviously sections of the international community, Tamil Diaspora, NGOs, Tiger think tanks, hardline separatists, terrorists, moderate separatists and the like would not be happy with such a solution. Worse still such a solution will reverse all what they extorted over the years and frustrate their Tamil Elam project. But that is exactly what we the Sri Lankans want and it fits very well with our other popular aspirations including an outright military annihilation of the LTTE, exploiting our resources scattered throughout the island for the betterment of us the Sri Lankans only, safeguarding our hard earned and hard fought sovereignty and continuing the 2,600 year-old proud and continuing Sri Lankan tradition.

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