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Friday 23 November 2012

Why 13A should be repealed – II

The thirteenth amendment was imposed by India on us following the infamous Indo Lanka Accord signed by J R Jayewardene under threat amidst dropping of Parippu. Rajiv Gandhi bullied Jayewardene with his Parippu diplomacy using Dixit who thought that he was the Viceroy. India did not act alone as it had the support of the west to the dismay of Jayewardene. India and west had been involved in training the Tamil terrorists, and England in particular created and nurtured Tamil racism. When the thirteenth 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 thirteenth amendment was introduced to the Parliament giving the impression that the Bill did not violate the constitution. Mr. Raja Wanasundara has explained what had happened and it appears that the thirteenth amendment bill was introduced to the 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 MPs were transported from a hotel in Colombo to the Parliament Bill to vote under compulsion 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. The thirteenth amendment was introduced to the Parliament in the most undemocratic way to say the least.

In any event it is said that the thirteenth amendment was introduced to address the grievances of the Tamils which were resulted by the actions of the “Sinhala governments” after 1948. On one hand even if one assumed that there were “grievances” of the Tamils, the thirteenth amendment attempted to solve only those of the Tamils lived in the Northern and eastern Provinces. As the majority of the Tamils lived outside those two provinces the so called grievances of the majority of the Tamils would not have been solved. Thus it was a bogus claim to say that the 13 A addressed the grievances of the Tamils in the country. Perhaps the Tamils living in the other seven provinces did not and do not have any grievances! 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.

Further those who claim that the Tamils rose against injustices caused to the Tamil people by the “Sinhala governments” after 1948 have to 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 Sinhalas who alone had fought against them at least from 1817 and used the English speaking Tamil Vellalas for that purpose. 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 story 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 wehave said for long time 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 so called solutions arrived at through peace talks, negotiations etc., including the thirteenth amendment. The 13 A 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 13 A was introduced and passed in the Parliament the political situation was different. India had the upper hand with the support of the west, and laws were made to suite 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 with England and USA composing the music. What was needed was a political solution, and at that time emphasis was made on so called peace talks. As far as the so called national question is concerned Mahinda Chinthana is outdated after Nandikadal.

There had been a lobby that pressed for a political solution through armed operations and gradually it was prevailed on the government that military operations should take the upper hand 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 the west and India to topple the government first creating instability through various springs, Katunayake incident, FUTA strike and “executive – judiciary” clash being examples. It is not suggested that the west directly takes part in these incidents but the western education that we receive with their theories acts as an agent of the interests of the west. Then the west has the dispersed Tamils living in their countries, the TNA, the NGOs that are on their pay roll, which are continually being used to propagate the myth that a “political solution” is needed even after the final political solution was given at Nandikadal.

There is no going back to Thimpu from Nandikadal and 13 A has to find its way to the dust bin of history. After the so called second world war if some Natzi remnants asked Churchill that they should have 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 humanitarian operations have defeated not only Tamil terrorism but the injustices, grievances, aspirations story of Tamil racism created and nurtured by the English against the Sinhalas. The problem of the English educated Tamil Vellalas to become the leaders of the entire nation was interpreted as a struggle of the ordinary Tamils against the Sinhalas by the English and the Tamil racists, and various “solutions” were suggested to solve a non existing problem. All these “solutions” have been superseded by Nandikadal and what remains to be done is to update law to be on par with politics.

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 hindrances. 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 the 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.

Copyright Prof. Nalin De Silva