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The 13th Amendment to the constitution is a product of Indo-Sri Lanka Peace Accord signed in July 1987, which acknowledged “The imperative need of resolving the ethnic problem of Sri Lanka, and the consequent violence, and for the safety, well-being and prosperity of people belonging to all communities of Sri Lanka”. It further recognised that “The Northern and the Eastern provinces have been areas of historical habitation of Sri Lankan Tamil speaking peoples, who have at all times hitherto lived together in this territory with other ethnic groups”. The Sri Lankan Government agreed to permit the adjoining of the Northern and Eastern provinces to form one administrative unit.
More than three months later the government enacted the 13th Amendment, which permitted the establishment of a provincial council for every province to come under the purview of a governor appointed by the president. These councils were toothless tigers as the executive president held the power to override any provisions of the amendment. Thus the devolution process was destined to fail even before it was implemented. But the nationalists of all tendencies, including the JVP, made every effort to place obstacles to any attempt at the full devolution of power. The Provincial Council system that was put in place to offer a viable solution to the ethnic problem failed to fulfill its main objective.
Developments since the accord
In 2003, Ranil Wickremesinghe’s administration offered a LTTE controlled interim administration in the North-East; however, the LTTE demanded an Interim Self-Governing Authority (ISGA). Although it was not possible to adhere to under the existing unitary form of constitution, negotiations could have continued to find some middle ground. But on November 4, President Chandrika Kumaratunga hastily took over the ministries of defence, interior and media held by the prime minister and suspended the parliament for two weeks. The sudden move due to the political differences between the president and the prime minister impeded the Norwegian brokered ceasefire and a $4.5 billion pledge in foreign aid to rebuild Sri Lanka. The president went on to dissolve parliament and called for general elections the following April.
President Mahinda Rajapaksa, on the other hand, appointed an All Party Representative Committee (2006-2008) with a 17 member panel of experts to make specific proposals for a constitutional settlement of the conflict. The panel of experts produced a majority report with 11 members favouring strong power sharing, with others disagreeing[i]. The majority went on to state that the country’s multi-ethnic, multi-lingual, multi-religious and multi-cultural character should be recognised while safeguarding its unity and territorial integrity. It also proposed to recognise the peoples of the island as the constituent peoples of Sri Lanka with every constituent having the right to its due share of state power. But the recommendations were ignored once again, making a mockery of the government’s commitment to devolution.
The Lessons Learnt and Reconciliation Commission
After the end of the civil war, the The Lessons Learnt and Reconciliation Commission (LLRC), appointed in May 2010, submitted their report in 2011 with a number of wide ranging recommendations. The well received report stressed that the government should present its own thoughts in a formal proposal to address the causes of the national question. It recommended a high level national dialogue inclusive of representatives of the minorities and emphasised that implementation of any power sharing mechanism needs to be done within the broad framework of a sovereign, politically independent and multi-ethnic Sri Lankan state.[ii]
The Rajapaksa Administration repeatedly assured the international community, particularly India, of its commitment to a political solution but took no meaningful steps towards this end. Many attempts were made to dilute the 13th Amendment, against which there was opposition from some members of the UPFA itself. The regime tried to divert attention away by appointing another Parliamentary Select Committee. But the Tamil parties and the UNP demanded that the government should first put its own proposal on the table for negotiation. In reality, the regime did nothing to address the burning issues that fuelled the armed conflict but leaned towards a more autocratic rule.
Indian factor
In 1987 Sri Lanka reluctantly relented to India’s pressure and enacted the 13th Amendment to the constitution as a supposed solution to the Tamils demand for self-determination. The sad and inescapable fact was that the political elite, and many of the moribund left, cynically used the ethnolinguistic and religious differences to reap political advantage, culminating in a strong opposition in the south not only to the Indo-Lanka Accord but also to the alleged Indian interference in Sri Lanka’s internal affairs.
Certain factions within the ruling United National Party (UNP), the main opposition Sri Lanka Freedom Party (SLFP), and the Janatha Vimukthi Peramuna (JVP) opposed both the accord and devolution. The SLFP mounted a legal challenge to the 13th Amendment. But when Mrs Kumaratunga took over the leadership in 1994, the SLFP adopted a pro-devolution position and strongly advocated for power sharing with the Tamil speaking people of the North and East.
In August 2000, President Kumaratunga put forward the Constitution of the Republic of Sri Lanka Bill for parliament’s consideration. The Bill proposed a non-unitary framework and a clear division of powers between the centre and the regions with no concurrent list to dispute. However, the self-centred political manipulations and a lack of statesmanship from the opposition, including the chauvinist position the JVP, resulted in another missed opportunity for a political solution – the Bill was not put to a vote.
In 2015, the Sirisena-Wickremesinghe National Unity Government set up a steering committee comprising all political parties represented in parliament and chaired by the prime minister to make proposals on constitutional matters, including centre-periphery relations. The interim report presented to the Constitutional Assembly in 2017 covered subject matters including principles of devolution. Again, the steering committee’s two years of hard work failed to produce any tangible outcome due to the lack of collective will, political leadership and unwillingness on the part of the Sinhala political parties to make a compromise. And the Tamil leaders and the Tamil speaking people who were hoping for a substantial progress were deeply disappointed.
Thirty six years on, India continues to press Sri Lanka on power devolution amid tensions in the North and East due to land acquisitions for expansion of military installations, forestry protection and Buddhist heritage conservation in historic Hindu and Muslim sites. Citing the two guiding principles of supporting the aspirations of Tamils for equality, justice, dignity and peace and the unity, territorial integrity and sovereignty of Sri Lanka, India is concerned with the lack of progress by the government in addressing the power sharing issues affecting the Tamil community. India has asked the government to work meaningfully to keep its promises. At the 54th session of the UN Human Rights Council, India’s representative has asserted that: “… progress on the same is inadequate and we urge the Government of Sri Lanka to work meaningfully towards early implementation of its commitments to ensure that the fundamental freedoms and human rights of all its citizens are fully protected…”
Prior to the 13th Amendment, Sri Lanka was a typical centralised and unitary state. Legislative power was exercised by parliament, executive power by the president, and judicial power through courts. During the armed conflict, the Rajapaksa regime pledged multiple times to provide a solution to the ethnic conflict on the principles of 13th Amendment plus, which it never defined.
Judicial interpretation
Legal challenges against the 13th Amendment and the Provincial Councils Bill were based on the argument that it was inconsistent with Articles 2 and 3 of the constitution as Sri Lanka is a unitary state and the devolution proffered was an unconstitutional alienation of the sovereignty of the people. If the Supreme Court had determined that devolution was materially affecting the unitary state and the sovereignty of the people, then the amendment can be validly enacted only if it was approved with a two-thirds majority in parliament, and sanctioned by the people in a referendum. However, a full bench of the Supreme Court by a majority decision held that the Amendment did not require a referendum and once enacted by parliament, the Provincial Councils Bill would be constitutional. Both the 13th Amendment and the Provincial Councils Bill were enacted in November 1987.
[i] Edrisinha R, Gomez M, Thamilmaran T A & Welikala A 2008, Power-Sharing in Sri Lanka: Constitutional and Political Documents, 1926-2008, Colombo: CPA
[ii] Fernando L 1981, The End of Village Committees, In Tribune (Ceylon News Review) September 12, 1981, and cited in Matthews B Nov 1982, District Development Councils in Sri Lanka, Asian Survey, 22 (11), 1117-1134, University of California Press
Read Part 2 here: https://groundviews.org/2023/10/01/nation-building-is-possible-with-full-implementation-of-13th-amendment-part-2/