The 13th Amendment of Sri Lanka and India-Sri Lanka Relations

Introduction

The devolution of powers in the provinces of Sri Lanka as envisaged by the 13th Amendment to the constitution remains controversial for its full implementation even after 36 years of its enactment. The amendment that was enacted following the historical Indo-Lanka Accord of 1987 unfortunately remains questionable due to various reasons such as conflict of opinions of the ethnic communities, perceptions of the politicians, and legal hurdles to name a few. This article looks into a detailed analysis of its historical background, and the developments throughout the years. While analysing the legal aspects of the 13th Amendment, this article will present precise issues involved in its implementation and the prospects of the same. The social aspects will look into the present perceptions of the two major ethnic communities (the Sinhalese and Sri Lankan Tamils), primarily focusing on the current government under President Ranil Wickramasinghe's approach towards them. Finally, the article will also look into the consistent position of India regarding the 13th Amendment and how India has played a decisive role in upholding the interests of both nations by constantly reiterating its position.

Historical Background

The 13th Amendment to the constitution of the Democratic Socialist Republic of Sri Lanka which was enacted on 14th November 1987 was not the first attempt to address the ethno-political issue through devolution of powers to the provinces. This was, however, criticised and protested by the majority Sinhala Buddhist population of Sri Lanka as an imposition of India, creating a vast anti-Indian sentiment. The generally accepted argument is that Sri Lanka's state-building during the postcolonial period evolved into an ethnic majoritarian democracy due to the actions of the rising force of Sinhalese-Buddhist nationalism and leaders of postcolonial Sri Lanka who believed that the post-independence state institutions should serve the interests of the majority Sinhalese community.^[1]

The political dominance of the Sinhalese soon aggravated the disenchantment of the minorities. The preferred option of the main Tamil political party, the All Ceylon Tamil Congress (ACTC), and its leader, G.G. Ponnambalam, even at the time of independence, was not federalism but to share power with the centre.^[2] SJV Chelvanayakam who formed the Federal Party ^[3] in late 1949, advocated for decentralisation and autonomy in the Tamil majority areas of Sri Lanka, and this was the first time when the idea of federalism was aroused as a political demand. However, Chelvanayakam was compromised to resort to an alternative to federalism through a pact. The Bandaranaike–Chelvanayakam Pact of 1957 called for decentralisation of power in the North and East provinces of Sri Lanka^[4] and later the Dudley Senanayake - Chelvanayakam Agreement of 1965; nevertheless, both fell short of essential norms of federalism and were withdrawn.

The enactment of the First Republican Constitution of Sri Lanka in 1972 gave Buddhism the foremost place and the language of the majority, Sinhalese, was made the sole official language. However, the minor safeguard, which was argued to be guaranteed by Section 29 of Soulbury Constitution ^[5] was also abrogated by this 1972 constitution. The Soulbury Constitution did not protect the rights of the minority but neglected the rights implicitly. This is evident from the fact that the Citizenship Bill and the Sinhala Only Bill were passed in Parliament when the provision of Section 29 was in force.^[6] All these factors spurred the Tamils to make an assertive discourse based on nationhood and self-determination which was eventually demonstrated through the “Vaddukoddai Resolution”.^[7] The Second Republican Constitution of 1978 did not improve the situation but declared Sri Lanka a unitary state. The major turning point of events was the 1983 Anti-Tamil riots also called the “Black July”. India took serious note of internal developments within Sri Lanka as the spill-over effects and Tamil Nadu’s concern could not be ignored.

Moreover, Sri Lanka's outreach to the West and Pakistan raised serious security concerns for India.^[8] The Government of India convened a meeting between the Sri Lankan government, Tamil United Liberation Front (TULF), and Tamil militant organisations and negotiated the “Thimpu Principles''. The Sri Lankan government expeditiously rejected this arrangement. On 29th July 1987, the historic Indo-Lanka Accord was negotiated and signed between the then President of Sri Lanka J.R. Jayawardene, and the then Prime Minister of India Rajiv Gandhi in Colombo which acknowledged Sri Lanka as a multilingual, multi-ethnic society.

The 13th Amendment

There are several interpretations and different approaches taken to understand the legislative intent and the purpose of the amendment. After the end of the Fourth Eelam War and the defeat of LTTE in 2009, the full implementation of the amendment became irrelevant to the government and the devolution of powers to provinces remained unanswered. The amendment introduced seven changes to the constitution, including making Tamil and Sinhala the official languages and English as a linking language. But, the major and the most fundamental problem is that the 13th Amendment sits within a very inflexible unitary state framework, which provides the background for interpretations regarding its working being tilted in favour of the Centre.^[9] The Governor of the Provinces whom the President appoints enjoys plenary powers starting from the matters of legislative agenda of the Provincial councils to un-curtailed discretion over the Provincial executives.^[10] The three appendices contained in the Provincial list are Law and Order, Land, and Education can be overridden by the central executive by drafting a national policy. So, the amount of liberty the elected representatives can exercise to make legislation for their respective provinces is also highly uncertain.

Legal Developments and Political Aspects

The Provincial Councils Act of 1987 established nine provinces in Sri Lanka but the North and East provinces were merged to constitute the Northeast Province as determined by the Indo-Lanka Accord 1987^[11] through the proclamation of President Jayawardene. This move received extreme backlash from the Sinhala community as they thought it would lead to separatism and the creation of an independent Tamil state disrupting the unitary structure of the nation. This apprehension began to manifest soon after the very first election in the Northeast provinces in 1988. Chief Minister of Northeast province, Annamalai Varatharajah Perumal in 1990 moved a motion in the North Eastern Provincial Council declaring an independent Eelam. This brought in Presidential rule in the province by dissolving the provincial council. Even after that, attempts were made by successive governments to rectify the defects in the 13th Amendment and devolve power into provinces in the years 1995^[12] and then 2001.^[13] All those attempts went in vain because of several factors such as a lack of consensus within the government, opposition from the majority Sinhalese, and maximalist proposals of LTTE through Interim Self Government Authority (ISGA). All these factors helped Mahinda Rajapaksa to come into power in the year 2005 with the support of small nationalist parties like Janata Vimukthi Perumana (JVP), which insisted on various commitments in the election manifesto that were hawkish, overtly Sinhala nationalist in tone, and contained a promise to preserve the unitary status of the island’s constitution.^[14]

On 16 October 2006, the Supreme Court of Sri Lanka ruled that the merger of the northern and eastern provinces of the Island in 1987 was "invalid".^[15] While the petitioners, including JVP, welcomed the judgment astonishingly this was just another despair for the Tamil community. The north and the east provinces have been militarised since 1988.

What is the Present Perspective?

As long as the LTTE existed, it stood for nothing less than a separate Eelam. But, in the post-LTTE Tamil polity, no one talks of separation, not even those parties that were considered the political fronts of the LTTE.^[16] Nevertheless, the saga of demands for the full implementation of the 13th Amendment by the Tamil and the opposition to the same by the Sinhalese continues even now. However, fundamentally the question is whether it is the demand of the politicians or of the people.

1. Views of the People

The current move of the President naturally provoked multiple responses from the people. Naturally, the opposition political parties are against implementing the 13th Amendment. The National People’s Power (NPP) parliamentarian is ambiguous about whether the implementation could be a sustainable solution to the issue. Another violent response was that sections of the Buddhist clergy congregated close to the Parliament and burnt a copy of the 13th Amendment to show their strong opposition to the proposal.^[17] While the Tamil community welcomes President Wickramasinghe’s assurance about implementing the amendment, the political parties are quite ambiguous because of past experiences and the absence of tangible efforts so far.^[18] The Aragalaya struggle that resulted in the resignation of former President Gotbaya Rajpaksa made people in the South question the military’s role in the civil sphere and the term “militarisation” began seeping into public discourse in the South. However, the resulting discussions were limited to the military’s bloated budget and did not extend to the militarization of the North and East.^[19] This indicates that the Sinhalese did not wish for the political autonomy of the northern and eastern provinces.

2. Wickramasinghe Approach

In his Presidential address on the nation’s 75th Independence Day Wickramasinghe declared that “We are still in the bounds of a unitary state. I am against a federal state, but I support the devolution of power to provinces. The provincial councils don’t even have the powers enjoyed by the City of London. So, we can’t call this a federal state,”.^[20] However his interest in implementing the amendment is also influenced by other associating factors such as

• The United Nations Human Rights Commission (UNHRC) passed a resolution to ensure human rights in Sri Lanka^[21]
• To regain the assistance from the European Union’s Generalised Scheme of Preferences Plus (GSP+)^[22]
• The pressure on the government from the Sri Lankan Tamil diaspora who sent huge amounts of remittance to Sri Lanka (around US$454 million in April 2023)^[23]

Indian Concern

The Indian government has never endorsed any kind of secessionism. The need for national reconciliation through a political settlement of the ethnic issue has been reiterated by India at the highest levels. India's consistent position is in favour of a negotiated political settlement, which is acceptable to all communities within the framework of a united Sri Lanka and which is consistent with democracy, pluralism, and respect for human rights. ^[24] However, this general concern of India has been labelled as a “big brotherly attitude”.

The ‘People to People’ connection between India and Sri Lanka is perhaps the strongest of all the ties, with around 15% of the Tamil native population in Sri Lanka.^[25] The Cultural Cooperation Agreement signed between India and Sri Lanka in 1977 further laid this relationship's foundation. The Swami Vivekananda Cultural Centre (SVCC), the cultural arm of the High Commission of India, Colombo, was incepted in 1998 and most recently opened the Jaffna Cultural Centre^[26] on 11 February 2023. Rāmāyaṇa Trails and Murugan Trails are also the most celebrated pilgrim trails in both countries. The Government of India offers several scholarships yearly to Sri Lankan students who wish to study in India.^[27] In an interview with France 24, President Wickramasinghe stated: “We are a neutral country, we also emphasise the fact that we cannot allow Sri Lanka to be used as a base for any threats against India.” It is undeniable that China- Sri Lanka engagement especially in the Hambantota port is a matter of concern for India and had to ensure the same by itself with strategic engagement with Sri Lanka. The visit of Wickramasinghe to India on 21 July 2023 for the first time after assuming the office of the President resulted in various optimistic projects, schemes, and initiatives.^[28] Prime Minister Modi has once again raised the aspirations of Tamil-speaking people in Sri Lanka and full implementation of the 13th amendment. The government of India always emphasises the full implementation of the amendment not only because it addresses the domestic issues of Sri Lanka but also the spillover effects it has in India like the issue of displaced migrants, fishermen issues, and so on.

Conclusion

President Ranil Wickramasinghe's active initiatives like All party conferences and discussions about the National Reconciliation Program and the North-East Development is a hope for the Tamil people to achieve their aspirations. Given the limitations of the amendment, the question is not whether the amendment needs to be fully implemented but whether it solves the problem. For that, what is highly necessary is the engagement of civil societies in the discussions to address their requirements rather than political party conferences with political motives. The President has stated in the Parliament that “Within a thriving provincial council system, there exists the potential for a significant transformation in the overall system.”^[29] With economic reconstruction programmes in Sri Lanka in force, it shall not be forgotten that the country cannot prosper as a strong at the same time, emerge as an admirable nation unless it fulfils the aspirations of its people. This cannot be ensured unless there is complete demilitarisation of northern and eastern provinces, full devolution of police, land, and education powers to the provinces, conduction of elections, and allocation of adequate funds to the eastern and northern provinces.

Endnotes

^[1]Sisira Pinnawala and S. Sathiaseelan, 'Evolution of Postcolonial Institutions of Power and Governance and the Issue of Political Representation of Minorities', in Sisira Pinnawala (ed.), Identity Politics and State-Building in Sri Lanka: Understanding Ethno-nationalist Mobilization in a Postcolonial State in Transition, Colombo, 2014, pp. 245
^[2]Edrisinha, R. (2015). Debating Federalism in Sri Lanka and Nepal. In M. Tushnet & M. Khosla (Eds.), Unstable Constitutionalism: Law and Politics in South Asia (Comparative Constitutional Law and Policy, pp. 291-319). Cambridge: Cambridge University Press. doi:10.1017/CBO9781107706446.010
^[3]The Federal Party is also called Ilankai Tamil Arasu Kachchi, it is a breakaway faction of the All Ceylon Tamil Congress (ACTC)
^[4]The North and the East provinces are the Tamil-majority regions in Sri Lanka
^[5] Section 29 (II) of the Soulbury Constitution deals with, Discrimination against race and religion
^[6] Ranjith Chandrasekara Kurunegala, “Reflections on the provision that failed to provide for the minorities”, The Sunday Times, Colombo, February 21, 2010.
https://www.sundaytimes.lk/100221/Plus/plus_03.html [3] (Accessed August 22, 2023)
^[7] The Resolution was unanimously adopted at the First National Convention of the Tamil United Liberation Front (TULF) held at Vaddukoddai on May 14, 1976.
https://www.sangam.org/FB_HIST_DOCS/vaddukod.htm [4] (Accessed August 22, 2023)
^[8] Dr. Samatha Mallempatisapru, ‘Security Dynamics in India- Sri Lanka Relation Post-2009, Indian Council of World Affair, February 2022
https://icwa.in/pdfs/SHPSecurityDynamicsIndiaSriLankaRelationsweb.pdf [5] (Accessed August 8, 2023)
^[9] Kumaravadivel Guruparan, The Irrelevancy of the 13th Amendment in Finding a Solution to the National Question: A Critical Note on Sri Lanka’s Post‐War Constitutional Discourse Published in 3 Junior Bar Law Review (2013) 30-42
https://sangam.org/wp-content/uploads/2014/01/Article_on_13A_for_Junior_Bar_Law_Review_Oct_2013.pdf [6] (Accessed August 16, 2023)
^[10] Ibid
^[11] The Accord recognises Northeast as "The historical habitat of the Tamil-speaking people of Sri Lanka”
https://frontline.thehindu.com/world-affairs/article30211417.ece [7] (Accessed August 22, 2023)
^[12] President Chandrika Kumaratunga was elected president in 1995 and her government sought to introduce a new constitution to rectify the defects in the 13th amendment and enhance power devolution
^[13] The Oslo Statement of December 2002 negotiated by Norway
^[14] Edrisinha, R. (2015). Debating Federalism in Sri Lanka and Nepal. In M. Tushnet& M. Khosla (Eds.), Unstable Constitutionalism: Law and Politics in South Asia (Comparative Constitutional Law and Policy, pp. 291-319). Cambridge: Cambridge University Press. doi:10.1017/CBO9781107706446.010
^[15] N Manoharan, Sri Lanka: The Issue of Northeast De-Merger, Institute of Peace and Conflict Studies,11 December 2006
http://www.ipcs.org/comm_select.php?articleNo=2165 [8] (Accessed August 21, 2023)
^[16] N Manoharan, Sri Lanka, and the 13th Amendment: Reconciling Differing Viewpoints, Institute of Peace and Conflict Studies, 8 July 2013
http://www.ipcs.org/comm_select.php?articleNo=4025 [9] (Accessed August 21, 2023)
^[17] Roshni Kapur, Ethnic reconciliation in Sri Lanka: Another missed opportunity https://www.orfonline.org/expert-speak/ethnic-reconciliation-in-sri-lanka/ [10] (Accessed June 9, 2023 )
^[18] Meera Srinivasan, “As talks with Tamil parties drag, Ranil pledges full implementation of the 13th Amendment” The Hindu, New Delhi, January 16, 2023 https://www.thehindu.com/news/international/as-talks-with-tamil-parties-drag-ranil-pledges-full-implementation-of-13th-amendment/article66383091.ece [11] (Accessed August 23, 2023)
^[19] Ambika Satkunanath, “Sri Lanka continues to militarise the state, despite the Rajapaksas’ fall”, Himal Southasian https://www.himalmag.com/sri-lanka-militarisation-rajapaksas-aragalaya-prevention-of-terrorism-act/> (Accessed August 23, 2023)
^[20] Rathindra Kuruwita, “Sri Lankan President Pledges Full Implementation of 13th Amendment”, The Diplomat, February 6, 2023 https://thediplomat.com/2023/02/sri-lankan-president-pledges-full-implementation-of-13th-amendment/ [12] (Accessed August 23, 2023)
^[21] United Nations, “Situation of human rights in Sri Lanka”, Comprehensive report of the United Nations High Commissioner for Human Rights - October 4, 2022 https://www.ohchr.org/en/documents/reports/ahrc515-situation-human-rights-sri-lanka-comprehensive-report-united-nations-high [13] (Accessed August 23, 2023)
^[22] Roshni Kapur, No. 17
^[23] Ibid
^[24] “Ministry of External Affairs, Government of India, India - Sri Lanka relations” at https://mea.gov.in/portal/foreignrelation/sri_lanka.pdf [14] (Accessed July 21, 2023)
^[25] Cultural Atlas at https://culturalatlas.sbs.com.au/sri-lankan-culture/sri-lankan-culture-population-statistics [15] (Accessed August 20, 2023)
^[26] The Jaffna Cultural Centre which is a remarkable example of India- Sri Lanka cultural relations, is also known as the Saraswathi Mahal
^[27] “India-Sri Lanka Educational Relations” at https://www.cgihambantota.gov.in/page/educational-relations/ [16]
(Accessed August 23, 2023)
^[28] “Promoting Connectivity, Catalysing Prosperity: India-Sri Lanka Economic Partnership Vision” at https://www.mea.gov.in/incoming-visit-detail.htm?36864/Promoting+Connectivity+Catalysing+Prosperity+IndiaSri+Lanka+Economic+Partnership+Vision [17] (Accessed July 21, 2023)
^[29] “Let’s collectively advance the 13th Amendment to the Constitution for the future betterment of the nation” at https://www.presidentsoffice.gov.lk/index.php/2023/08/09/lets-collectively-advance-the-13th-amendment-to-the-constitution-for-the-future-betterment-of-the-nation/ [18] ( Accessed August 22, 2023)

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