If an Indian leader or top official makes a statement on Sri Lanka, it would invariably mention one piece of legislation in Sri Lanka’s Constitution — the 13th Amendment. External Affairs Minister S. Jaishankar, who was in Colombo earlier this week, said he shared India’s “considered view” with President Ranil Wickremesinghe that the full implementation of the 13th Amendment was “critical” for power devolution.
Sri Lanka’s current Constitution, adopted in 1978, has had 21 amendments to date, but arguably, none as controversial as this. Passed in November 1987, months after Prime Minister Rajiv Gandhi and Sri Lankan President J.R. Jayewardene signed the Indo-Lanka Accord, the 13th Amendment is the only legislative guarantee of a measure of power devolution to the island’s provinces. It provided for setting up provincial governments across the country — there are nine provincial councils — and made Tamil, too, an official language, and English, a link language.
It was, in some measure, an antidote to the ‘Sinhala Only Act’ of 1956, one of the most discriminatory laws passed targeting the island’s Tamil minorities, after the Ceylon Citizenship Act of 1948 that rendered Sri Lanka’s Malaiyaha Tamils of Indian origin stateless. It also sought to address the Tamils’ right to self-determination which, by the 1980s, had become a raging political call. With the 1983 anti-Tamil pogrom laying bare violent Sinhala majoritarianismand racism, it was hard for the world and India not to appreciate a legitimate demand.
However, for successive governments, devolving power to the provinces as per the 13th Amendment, including in the Tamil-majority north and east, was hardly on their ‘must do’ list. Despite public promises, leaders from the Sinhala-majority south failed to implement in letter and spirit what was already in the Constitution. Detractors construe the 13th Amendment as an “Indian imposition”, despite it being an outcome of a bilateral Accord signed by J. R. Jayewardene, one of the island’s most powerful Presidents.
The provincial councils function, but nominally. The rule book gave provinces legislative power over agriculture, education, health, housing, local government, planning, road transport and social services. But an ambiguous concurrent list and overriding clauses in the Constitution allow the Centre to remain all-powerful. The executive President still wields enormous power and the provincial Governors, representing the country’s highest office, possess similar power at the regional level. The last three decades are rife with attempts by the Centre to take back power, Tamils point out.
Grip on power
Colombo is especially wary of sharing land and police powers, and resolutely controls the subjects. In the absence of a sound argument, legal or political, to justify this centralised grip on power, it can only imply that the island’s southern leaders are reluctant to share power with the Tamil minorities, as well as their own people governing the provinces. For 36 years since its passage, the failure to fully implement the 13th Amendment is an enduring reminder of the Sinhalese establishment’s apparent insecurity over sharing power, or as many Tamils would argue, intrinsic racism. To those opposed to Tamils holding any power, the 13th Amendment embodies “too much power” to part with.
For the Tamils, on the other hand, the 13th Amendment is too little. The LTTE rejected it. Among the current Tamil polity, almost all see it as inadequate. Regardless, it is all that they have at the moment, after demanding political rights for over half a century, mounting an armed struggle, and engaging in talks with successive leaders. A constitutional provision that they consider inadequate, and the Sinhala nationalists view as excessive.
The problem, though, is not just to do with the Amendment, but Sri Lanka’s unitary Constitution, Tamils argue. In a letter to Mr. Jaishankar, Jaffna legislator and leader of the Tamil National People’s Front, Gajendrakumar Ponnambalam, said that ever since the 13th Amendment to the Constitution of Sri Lanka was introduced, the Tamils have rejected it on the grounds that for as long as the structure of the State remains Unitary, no meaningful autonomy and self-government can be achieved. “Thirty-six years after the introduction of the 13th Amendment, the situation is far worse than at the time it was introduced. There are over 30 judicial judgements from the highest courts of the country that have held that for as long as the State structure remains Unitary the Government in Colombo will be the sole repository of all powers and have specifically held against devolution.”
In its recent meeting with President Wickremesinghe, the Tamil National Alliance (TNA) has outlined five steps to immediately implement the Amendment in full, including reversing certain laws that reduced provincial powers. They see it as a starting point for negotiating greater power sharing and a final political settlement. Belated, insufficient, but necessary, in their view.