By Veluppillai Thangavelu –

Veluppillai Thangavelu

13th Amendment has returned to the limelight among Tamil nationalist parties after a lapse of 35 years. Amendment 13 A is the outcome of the Indo-Lanka Agreement signed between Indian Prime Minister Rajiv Gandhi and J.R. Jayewardene, President of Sri Lanka. The Accord was signed on 29th July 1987 in Colombo. The accord was expected to resolve the Sri Lankan Civil War by necessary Amendments to the Constitution of Sri Lanka. This was at a time his government was facing two insurgencies, one in the Northeast led by Tamil militants and the other in the South led by the JVP.

The Agreement was bitterly opposed by leading members of J.R. Jayewardene’s own United National Party. The opposition was spearheaded by Lalith Athulathmudali who was the Minister for National Security in J.R.’s cabinet. It was also opposed by Prime Minister, Ranasinghe Premadasa who flew to Japan to avoid the signing ceremony. Opponents of the Accord claimed that it was signed under duress and threat of military force.

On 14 November 1987 the Sri Lankan Parliament enacted the 13th Amendment to the 1978 Constitution of Sri Lanka along with the ancillary Provincial Councils Act No 42 of 1987 to establish Provincial councils. This led to the creation of 9 Provincial Councils on 03 February 1988. The first election for provincial councils took place on 28 April 1988 in North Central, Northwestern, Sabaragamuwa and Uva provinces.

13A also declared Tamil shall also be an official language and English shall be the link language. It assured a power-sharing arrangement to enable all nine provinces in the country, including Sinhala majority areas, to self-govern. Accordingly, the provincial councils have become the second tier of the administrative structure of Sri Lanka.

On September 2 and 8 1988, President J.R. Jayewardene issued a proclamation temporarily enabling the Northern and Eastern provinces to be one administrative unit administered by one elected Council till a referendum was held in the Eastern Province on a permanent merger between the two provinces. However, the referendum was never held and successive Sri Lankan presidents issued proclamations annually extending the life of the “temporary” entity. Ironically, he himself was opposed to the merger of the Northern and Eastern provinces as a single entity but agreed to it as a tactic.

Elections were held for the NEPC on 19 November 1988. A. Varatharajaperumal of the EPRLF was elected as the Chief Minister.

The merger of the NEPC into one province resulted in the JVP reacting violently, stepping up a campaign of killings, strikes and violent demonstrations in the South. However, the merged NEPC was dismissed following the UDI by Chief Minister Varatharajaperumal on March 01, 1990, and brought under central control. It was dissolved in June 1988.

On 01 January 2007, the two provinces – North and East were de-merged following a court case filed by the JVP the previous year. The Supreme Court in its verdict did say the merger of the two provinces has no force in law, but the Court also said that parliament can pass a law to merge the provinces instead of by Presidential gazette notifications.

The 13th Amendment is considered unfair and partisan by both the ultra-Sinhala nationalist parties and the LTTE. The Sinhala nationalist parties thought it was too much power to share while the Tamils consider it too little. The Tamil National Alliance (TNA) — which chiefly represented the Tamils of the north and east in Parliament in the post-war era see it as an important starting point, something to build upon. One major sticking point is the office of the Governor created by the 13th Amendment.

The Governor of a Province unlike the Governor of a State in India is no mere figurehead. The 13th Amendment stipulates that executive power in the province in relation to those matters which are within the competence of the Provincial Council shall be exercised by the Governor. However, the fact remains that 13A is the only constitutional provision with the province as a unit of devolution on the settlement of the long-pending Tamil question.

Despite the passage of 13A, successive Sri Lankan governments have failed to implement the Accord fully, especially Land, Police and Public Order, despite repeated calls from Tamil parties and the Indian government. Public

Elections were not held to the demerged Eastern Provincial Council until 2008 and to the Northern Provincial Council until September 2013. Thus, the Tamils did not benefit from the Provincial council system that was meant, in the first place, to meet the demand for devolution of power by the Tamil people.

Now Gajendrakumar Ponnambalam, leader of both the ACTC and TNPF has denounced the 13th Amendment enacted within a unitary state and those Tamil parties that stand for its implementation as stooges of India. He and his party the TNPF kept out of the entire exercise because they felt that 13A has no place even as a temporary arrangement or as the first step towards a federal structure. According to Gajendrakumar the TNA’s insistence on the 13 A only helped the Sinhala-dominated government to preserve its unitary state. The only solution for the Tamils is to fight for full federal state within a united country.

On 10 January 2022 In a public statement, the Tamil National People’s Front slammed the 13th Amendment and maintained their steadfast commitment to “the hallowed Tamil National principles of nationhood and self-determination”. In their statement, the TNPF slammed the Tamil National Alliance (TNA) for its support of the amendment maintaining they were “contravening decades of successive mandates of the Tamil nation”.

They further highlighted that “the Provincial Councils were widely pilloried, rejected and boycotted by Tamil people, and considered not even a starting point to Tamil political aspirations of nationhood and self-determination. We have dedicated ourselves to campaign to defeat the move to implement the 13 A and Provincial Councils, and have commenced a campaign to communicate our people the grave dangers of the Provincial Councils” they conclude.

The argument that the TNA or other Tamil nationalist parties have accepted the 13 A carte blanche is puerile. In an interview with The Morning, TNA spokesperson, M A Sumanthiran said that ” 13 A doesn’t fulfill the aspirations of the Tamil people. “The 13th Amendment set up the Provincial councils – that we welcome. It also enabled two or more adjacent provinces to amalgamate – that we welcome. But insofar as the powers that were given to the provinces and within the framework of a unitary constitution, that experiment is a failure as we envisaged because the centre has been taking back powers that were granted on paper under 13 A,” he added.

Ironically while Gajendrakumar denigrates the TNA leaders for accepting 13 A and contesting Provincial Council elections, he also says his party will contest the Provincial Council elections whenever elections are held. In the past, the ACTC has boycotted the Provincial Council elections claiming it is a creation within a unitary constitution. At a press conference prior to the holding of the elections in 2013 in Jaffna, he waxed eloquent ” the TNPF totally boycotts the election. We will not contest and under no circumstances. We have told the TNA to face the elections with the message that the 13 A is neither a beginning, nor an interim solution, and nor a final solution.”

Does he admit now he was wrong in boycotting the elections in 2013, but right in contesting the elections now? Applying the same logic that 13 A is a “creation within a unitary constitution” why his party is contesting elections for a parliament that is also created by the unitary constitution? Suffice to say there should be a method in one’s madness.

If we accept his argument now, then he was wrong in boycotting the elections in the past. Taking into account his idiosyncrasies, there is no guarantee he will not perform another summersault in the future.

Again, he has no qualms in taking an oath of allegiance to the unitary constitution before and after getting elected to parliament under the 6th Amendment enacted on 8 August 1983. This draconian Amendment made it a criminal offence to advocate secession and establish a separate state within Sri Lanka.

Under 157A. (1) No person shall, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka. (2) No political party or other association or organization shall have as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka.

Gajendrakumar’s outright rejection of 13 A must be sweet music to the ears of those ultra-Sinhala Buddhist nationalist forces who also want the abolition of 13A and the Provincial Council system under it for opposite reasons.

It is historically true that the TULF which was engaged in extensive talks with the Indian Government in the eighties did not accept fully the 13 A. In a lengthy letter signed by Amirthalingam, General Secretary, M. Sivasithamparam, President and R. Sampanthan, Vice President and addressed to Rajiv Gandhi, Prime Minister of India on 28 October 1987 it catalogued the shortcomings of 13 A. ( https://sangam.org/letter-pm-rajiv-gandhi-tulf-13th-amendment/).

The TULF leaders did not reject 13 A outright but expressed their disappointment stating the TULF regrets it cannot recommend the contents of these Bills (13 A and Provincial Council Bilks) to the Tamil people as being satisfactory, just and durable.

The letter claimed “All parties to the negotiations have always understood that the powers to be devolved to the Provincial Council will be the same as those enjoyed by a state in India with suitable adaptations. This was to be particularly so in the field of legislative and executive power. During the discussions between the Sir Lankan Government and the TULF in July/August 1986, it was agreed that the legislative power of the province in respect of provincial subjects would be near-absolute and that the governor would be a ceremonial head, with his discretionary powers clearly defined.

In retrospect, it would be seen that the Provincial Board of Ministers, including the Chief Minister, had almost unfettered freedom to administer the province without the Governor placing roadblocks or interfering with the day-to-day administration of the Provincial Council. In fact, the Governor while enjoying executive powers, in most cases has to act on the advice of the Chief Minister. For example, Ministers are appointed by the Governor on the advice of the Chief Minister, so is the removal of Provincial Ministers. While 13A devolves power within a unitary constitution, it has at the same contains some federal features if implemented fully including Land, Police and Public Order and order powers. It will be foolish to throw the baby out with the bathwater.

A letter dated 29, December 2022 and addressed to Prime Minister Modi by 5 Tamil parties stated “In this situation, we appeal to Your Excellency to urge the Government of Sri Lanka to keep its promises to: (I) fully implement the provisions of the Thirteenth Amendment to the Constitution (ii) implement the clear commitments made by all sections of government from 1987 onwards and enable the Tamil speaking peoples to live with dignity, self-respect, peace and security in the areas of their historic habitation, exercising their right to self-determination within the framework of a united, undivided country.

In short, 13A is a starting point in a long struggle by the Tamil people inhabiting the Northern and Eastern provinces as their area of historical habitation, a federal structure by exercising the right of self-determination of the Tamil people within a united country. Unfortunately, the ultra-Sinhala-Buddhist nationalist forces are vehemently opposed to it. Sinhalese people have been brainwashed that federalism means a division of the country.

Under these circumstances, it is political suicide on the part of Gajendrakumar to reject 13A and campaign to communicate to the Tamil people the grave dangers of the Provincial Councils.

He should be told that it is unwise to release the bird in the hand (13A) for two birds (federal) in the bush.