‘13th Amendment is illegal’ We should neither please nor annoy India

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By Susitha R. Fernando

While a hotly argued debate is taking place on the 13th Amendment, the Daily Mirror spoke to President’s Counsel and Constitutional lawyer, Manohara R. de Silva, who was also a member of the Expert Panel of the All Party Representiative Committee (APRC) and released a ‘minority report’ against the report produced by Tissa Vitharana Committee. Mr. de Silva, who is also a member of the Law Commission and Counsel of Legal Education argued that the 13th Amendment was illegal and created in an unlawful setting and that the government must revoke it immediately.  

Q: How you see the social and political background that created the 13th Amendment?
Firstly the 13th Amendment is not something that we wanted. It was forced on us by India. It was passed consequent to the Indo-Lanka Accord, which was signed, while the country was under curfew and MPs were brought to a hotel by force. Their letters of resignation had been given to the President. It was under duress that this Indo-Lanka Peace Accord was signed and subsequently the 13th Amendment was implemented. These are facts that are not been disputed. Anybody who stands up for democracy, the rule of law and good governance cannot possibly approve the 13th Amendment, firstly because of the way it was passed and secondly the content of it. Even if they agree to the content of it, one cannot agree to the undemocratic way in which it was done. So, anybody who upholds democracy cannot support the 13th Amendment.

Q: How do you define the legality of the 13th Amendment?
The 13th Amendment was not enacted according to law. With regard to the legislative process also there are faults. When the Supreme Court looked into it, only four judges said a referendum was not required. Five judges said at least one or more of the provisions required a referendum. Four of them said that it affected the unitary status of the country and took up the position that most of the provisions were inconsistent with the Constitution and required a referendum. One judge said a referendum is required to pass certain articles (article 154 G 2 and154 G (3) .
When the Supreme Court says that at least one section requires a referendum then the only way it can be passed is by going to a referendum. Unlike a normal Bill, where you can probably do some amendment, that is not possible with regard to a Bill to amend the Constitution and the Supreme Court had determined at least one provision needed a referendum. So, it is totally in violation of article 80 (2) that the Bill was passed or rather purportedly passed. So nobody challenged this because article 80 (3), where there is finality clause in the Constitution but still I personally don’t think it is a bar. In this case you need the certificate from the President that a referendum was conducted and the result of the referendum. Even article 80 (3) is also not a bar because without the certificate of the President one could not have passed it. So I say it is firstly illegal. However for the past 25 years nobody challenged this. Certainly, the content of it is not in the best interest of Sri Lanka and that course can be easily explained.

Q: It was there for the last 25 years. So why this cry to abolish 13th Amendment now before the Northern Provincial Council Election?
This is because most of the provisions were not given effect to. Like for instance police powers were not given effect to and therefore there was no conflict between the Provincial Councils and the government of Sri Lanka. In most cases it was the same government that controlled the Provincial Councils. In practical terms there was no conflict.
But we are concern now because there is a fear that when the Northern Provincial elections are held and if the TNA comes to power it will exercise police powers. And consequent to that even the other provinces might exercise  police powers. There is a danger in exercising Police powers by the PCs. Some people say it is some kind of a community police and they will be just directing traffic and arresting thieves involved in minor thefts. But it is not so. When police powers are exercised by PCs they can pass a law for a  new criminal procedure code and then have a  new police ordinance. Probably they might try to have a supplement to the Penal Code.

" We must not attempt to please India. What we must do is not to annoy India. So maybe we shouldn’t annoy them but we can talk to them. Now one thing we must tell them right now is that the 13th Amendment is much worse than their own Constitution "

Investigation, prevention and prosecution of offences with regard to offences other than what is mentioned in the schedule that are vested with the provincial police. That means; if I am killed (Since I am not a VIP) the prosecution will be by the Provincial police. (If the President is killed the national police will be able to exercise their police powers) But with regard to ordinary citizens it will be by PC police.
It is the Chief Minister to whom the DIG will be responsible. Now, people who talk about good governance and rule of law and who supported the 17th Amendment don’t talk about the Chief Minister exercising his powers to influence and control the DIG and the provincial police posts. They wanted the 17th Amendment to be revived now becasue the President appoints the IGP. So they wanted the IGP to be independent. Now why aren’t these people telling the same thing about the Chief Minister?  The only conclusion one could arrive at is, that they have an ulterior motive to weaken the centre and strengthen the province and strengthen the provincial politicians. This will certainly lead to an armed police force and provisions regarding amalgamation of the provinces and the creation of a state of Eelam.

Q: Did the 18th Amendment make any changes to the powers enjoyed by the PCs?
No. The 18th Amendment dealt with the National Police Commission but it did not touch the Provincial Police Commission.

" Nobody is against devolution. What we are against is to bring provisions into the Constitution through the backdoor against the wishes of the people. "

Q: But there is a governor appointed by the President and he will be above the Chief Minister?
Under article 54 (C) the governor should exercise his powers subject to the requirement in article 54 (F) which says that the Governor should act according to the advice of the Chief Minister and the board of minister. So the Governor cannot act independently, he has to act according to the Chief Minister.

Q: We have come out of a long bloody war which dragged on for more than 25 years and according to the experts there are reasons for the war and there is an urgency for devolution of powers? Shouldn’t we devolve power to find a solution?
Certainly they can devolve power. If the people of this country want to devolve power they can do it. But they must do it legitimately giving the people the opportunity of expressing their views and not the way the 13th Amendment was brought. So they must repeal the 13th Amendment forthwith or at least put it before the people and get their views at a referendum. And make a law the way the people want it.  Nobody is against devolution. What we are against is to bring provisions into the Constitution through the backdoor against the wishes of the people.

Q: Is it fair for the majority to take decisions on behalf of the minority?
We don’t need to take decisions on behalf of the minorities. In any country the laws are made by the majority, otherwise how can laws be made. You can’t ask minorities to make laws for them and have two laws. So that is the division and that is what we call Eelam.  

Q: We cannot forget India which created this situation despite being the closest neighbour and has close historical ties with Sri Lanka. Whatever it is India is the most powerful country in South Asia and we cannot ignore it. How can we solve this problem, while pleasing India?
We must not attempt to please India. What we must do is not to annoy India. So maybe we shouldn’t annoy India but we can talk to it. Now one thing we must tell them right now is that the 13th Amendment devolves more powers than India’s own Constituion and what they introduced to us is much worse than their own Constitution. I don’t think as a legitimate state India will insist that we must devolve more powers than what India has done to its states. Under the Indian Constitution, the Central government can intervene if the state government acts against the interest of the nation. But there is no similar provision in the 13th Amendment. If the state government acts against the interests of the people the central government can take over the state in India. But it is not possible in Sri Lanka except in the rare instance of where there is a civil disturbance and an emergency declared. In India  the central government can give a direction and if the state government does not obey the centre can take action.  Failure to do that is a ground for the Central government to take control of the state in terms of the Indian Constitution. But the 13th Amendment does not give that power to the government of Sri Lanka. So we must tell India that all the provisions that it left out should be introduced. And all the provisions which they brought in to the 13th Amendment but are not in the Indian Constitution need to be reconsidered.

Q: Right now we are in a political dilemma where the MPs within the coalition government are divided. What is best possible solution we can reach now?
I think the President should call for a referendum asking whether the people want to continue with the 13th Amendment or not. If the majority want it then lets have it. Because the people of this country were denied an opportunity of a referendum unreasonably through manipulation of the Supreme Court judgement. The person responsible for that manipulation was the then Attorney General Siva Pasupathy. The government of that time dishonestly and unlawfully forced the 13A on the people. So it is high time that we rectify it.

" If we have the Provincial Council we can’t deny the right of the people in the northern province. Whatever the people in the South have the people in the North should also have. There is no question about that "

Q: What about the democratic rights of the people in those areas?
If we have the Provincial Council we can’t deny the right of the people in the northern province. Whatever the people in the South have should be given to  the people in the North also. There is no question about that. That is why I say that the 13th Amendment should be abolished. Not only for the Northern Provincial Council but to all the existing provincial councils it should be abolished. Because it is an utter waste of money of having 9 ministers of education and 9 ministers of agriculture and another hundred in the centre. We are wasting all these money on politicians without spending it on the people of this country.

Q: Alternative political parties have come up with various constitutional amendments? As a Constitutional lawyer what would be the best option now?
I was a member of the All Party Representative Committee (APRC) expert panel. The experts were divided and we submitted a report, which is popularly known as the minority report. We were led by the eminent lawyer H. L. De Silva. Our group included Prof. G. L. Peiris and Gomin Dayasiri. We the rest of the committee have put our proposals there and made a study of the majority report. Now the UNP has proposed a draft, based on Tissa Vitharana’s proposals which I believe are harmful to the country. I dont think the people should accept Prof. Vitharana’s proposals because he had been acting against the interest of the people of this country.

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