Genealogy of Concept and Genesis of 13th Amendment-1

Genealogy of Concept and Genesis of 13th Amendment-1

By Prof. Gamini Keerawella

September 16, 2020

Those who oppose devolution of power are up in arms now against the 13th Amendment, believing that the Provincial Council system has created a political space for the sub-national groups in the North and East to share power at the regional level. They allege that the 13th Amendment was an externally engineered move, and the Provincial Council system is a parasitic organ planted in the body politic of Sri Lanka by India and, therefore, they should be abolished without delay.

When one traces the chain of dramatic events leading to the 13th Amendment, it is clear that the immediate compulsion that forced President J.R. Jayewardene to present the 13th Amendment to the Parliament was India’s coercive diplomacy against Sri Lanka, which was known as ‘Parippu Diplomacy.’ However, the concept of devolution of power and the idea of Provincial Councils as a unit of devolution had been at the centre of political discourse well before the Indo-Sri Lanka Peace accord, at least from the 1920s. The Provincial Councils did not come from the blue sky with the Indian dhal cannon in 1987. The concept of devolution had surfaced again and again in the post independent political discourse in the course of sporadic attempts to accommodate political interests of sub-national groups. However, the manner in which the Provincial Council system was established in 1987 and the presence of the IPKF destroyed the legitimacy of the provincial council system at its inception. It does not negate the validity of devolution of power as a devise of unity in a fractured society. This essay intends to debunk certain misperceptions relating to the origins of the Provincial Council system by tracing the genealogy of the political discourse on devolution of power embodied in the 13th Amendment.

The conceptual origins of the Provincial Councils could be traced back to the Donoughmore Report in 1928. Conceptualizing it within the framework of local government, it presented a proposal to establish Provincial Councils to delegate certain administrative functions of the Central Government. More important is the rationale presented by the Donoughmore Commission for Provincial Council in 1928.

The argument in favour of the establishment of a Provincial Council in each Province is that such a scheme might result in a large part of administrative work now carried out in the Legislative Council coming into the hands of persons permanently resided in the country districts and thus more directly in contact with their needs; in the relief of the departments of the central government of much detailed work and in their being thereby set free to consider and advise on the larger affairs of the country: in the special views of the different races predominant in the different part of the Island having effects in the administration of these parts; in members of growing body of politically-minded persons in the country being placed in an honourable position to render real assistance in administration.

The Commission recommended that the new department without delay should explore the possibility of establishing Provincial Councils. Further it proposed that ‘an experiment with a council of this nature may be made in a more highly developed province within the next few years, and if that should prove successful, the system rapidly extended throughout the island’. The Issue of Provincial Councils came to discussion at the State Council in 1940 when R.S.S. Gunawardena proposed a motion on 10 July 1940. The The motion declared, “This Council is of the opinion that immediate effects should be given to the recommendation of the Donoughmore Commission with regard to the establishment of Provincial Councils”. Following the Motion, S.W. R.D. Bandaranaike as the Minister of Local Administration placed a detailed report of the Executive Committee of Local Administration on Provincial Councils before the State Council. It identified functions of proposed Provincial Councils in three main classes: supervisory, direct executive and advisory. The proposal was soon overtaken by other developments relating to the transfer of power and the issue of representation. Referring to the Provincial Councils, S. W. R. D. Bandaranaike stated in December 1947 during the Budget Debate that: “I do not think I shall be able to introduce the Bill relating to Provincial Councils before January next year. The Bill is ready, but as it impinges on the functions of my colleagues in the Cabinet, I have to obtain their consent to all the implications of the Bill before I can introduce it in this House”. It is important to note that even in the 1940s the Tamil leadership had not taken the issue of Regional Councils and devolution of power to regions into their hands.

When the transfer of power to Sri Lanka was in sight after the 1943 Declaration, the issue of how to reconcile the competing claims to present a constitutional arrangement satisfactory to all stakeholders came to the forefront. The 1943 Declaration requested the Board of Ministers to proceed with the framing of their constitutional proposals. At the same tine it emphasized that the proposals should obtain a three-fourth majority. One of the key issues that cropped up in this process was the basis of representation. Both, the purely population basis as well as communal representation were found to be not acceptable. Accordingly, the method of one seat for every 75,000 of population and one seat for every 1,000 square miles of territory in each province was worked out. It was at this point the British Government appointed the Soulbury Commission. The Tamil Congress under G.G. Ponnambalam was not prepared to accept the Ministers’ proposals and presented their own instead. After the experiences of the Donoughmore Constitution, the main Tamil leadership insisted on balanced representation, i.e. fifty percent of the seats for minorities including ‘Ceylon Indians’ – term used then to identify the Tamils of Indian origin. As I. D. S. Weerawardena pointed out when the Ministers drafted their proposals they pledged to give some weightage to all the minorities. S.W.R.D. Bandaranaike offered a scheme of 60:40 as a basis of representation. The proposals of the BOM were accepted by the Soulbury Commission and incorporated into the new constitution. In I. D.S. Weerawardena’s words, “From the point of view of the minorities, the new Constitution of Ceylon was the point of balance among the various conflicting communal claims”. Ultimately, the Tamil Congress of G.G. Ponnambalam agreed to settle for the unitary form of constitution with balanced representation based on 60:40 formula negotiated by S.W.R.D. Bandaranaike on behalf of the Ceylon National Congress. The one of very first acts of the rulers of Independent Sri Lanka disrupted this balance setup by the Soulbury Constitution ‘among the various conflicting communal claims’. The Citizenship Acts of 1948 and 1949 changed the political scenarios. This move not only made the earlier formula of distributing seats to provinces meaningless but also created an unresolved issue between Sri Lanka and India, leaving room for India to intervene. “The Soulbury Constitution received minority support (without which it could not have been implemented) because it arranged to enable the minorities to win a certain number of seats. The Ceylon Indians were among these minorities. To deny them the vote is to deny them the seats. One moral undertaken has been done away with. To deny the vote to Ceylon Indian is also to reduce the total number of seats available to all minorities. That is a broken pledge to all minorities…. The moral basis of the Soulbury Constitution has been wiped away. To attempt to prove the constitutionality of the position is not to attempt to prove its justice”.

Its implications for the new political environment as well as for Tamil political circles were far reaching. Within the Ceylon Tamil Congress a group led by S.J.V. Chelvanayakam left the party to form the Federal Party on a regional agenda. At first, however, the regional agenda put forward by the Federal Party did not have any serious impact on Tamil politics and in the 1952 general elections the regional agenda was clearly rejected by substantial margins in the North and East in favour of the Ceylon Tamil Congress candidates. This situation rapidly changed in the period 1952-1956.

In 1955 the Commission of Local Government was appointed with N.K. Choksy as its Chairman. In its report the commission admitted that there was a strong support in favour of the establishment of Regional Councils in the country. However, the Commission strongly presented the case in favour of the Provincial Committees and not Regional Councils.

The phenomenon of regional councils based on existing provinces came into political discourse once again in the history of post-Independence Sri Lanka in 1957, with the Bandaranaike-Chelvanayakam Pact, three decades prior to the 13th Amendment. Part –B of the Pact contained the Joint Statement on Regional Councils. According to the provisions of the agreement regional areas were to be defined in the Bill and the Northern Province was to form a regional area but the Eastern Province was to be divided into two or more regional areas.

Provision was to be made in the Bill to enable two or more regions to amalgamate beyond the provincial limits and for one region to divide itself subject to ratification by Parliament. Parliament was to delegate powers and specify them in the Act. The Central government would provide block grant to the Regional Councils. At the same time, the Regional Councils would have powers of taxation and borrowing.

The unilateral abrogation of the B-C Pact in the face of articulate small group of political activists belied an early opportunity of accommodating the interests of sub-national groups. Bandaranaike did not address the broader constituency over the heads of these elements using his mass appeal to save the B.C. pact. In the face of a lack of support within the government quarters itself, Bandaranaike did not have courage to confront the anti-Pact forces. What happened to the B-C Pact is now well known. However, the political dynamics of post-colonial Sri Lanka linked with multi-ethnic social reality did not allow burying the basic principles embodied in the B-C Pact and they conjured up again and again in different garb.

The UNP, which took to the streets in opposing the B-C Pact was forced to come to terms with the Federal Party in 1965. The Senanayake-Chelvanayakam Agreement of 1965 covered three issues: the language rights of the Tamil people, granting of land in colonization schemes and regional devolution of power. According to Article 3 of the Agreement, “Action will be taken to establish District Councils in Ceylon vested with powers over subjects to be mutually agreed upon between the two leaders. It was agreed, however, that the Government should have power under the law to give directions to such Councils under the national interests”.

The main Left parties (the CP and the LSSP) who were the champions of equal language rights in their good old days now joined hands with the SLFP to oppose the Tamil Language (Special Provisions) Regulations. In the light of the antipathy created by the opposition in the country, the UNP-led coalition government was faltering in presenting District Councils provisions to the Parliament. Ultimately a White Paper on proposals for the establishment of District Councils under the control of the central government was presented to the Parliament in 1968. The SLFP boycott the debate at the Parliament and campaigned against it outside. In view of a possible backlash on the part of the Government caucus itself, Prime Minister Senanayake decided not to go ahead with the White Paper.

It is important to note that Mrs. Bandaranaike also had to grapple with the issue of regional devolution of power. S.J.V. Chelvanayakam resigned his seat in protest following the adoption of the first Republican Constitution. After much delay the UNF government decided to have s bye-election in1975. The United Front decided to field V. Ponnambalam, a veteran Communist Party member against Chelvanayakam. Despite the unfavourable political climate in the country in general and in the region in particular, V. Ponnambalam fared comparatively well (9457) vis-à-vis Chelvanayakam (25,927). After the bye-election, V. Ponnambalm resigned from the C.P. It was later revealed that Ms Bandaranaike had promised V. Ponnambalam that a statement will be issued before the Election Day promising regional devolution. Santasilan Kadirgamar refers to the book Senthamilar Ahuvom written by V. Ponnambalam in which he reasoned out why he resigned from the C.P. According to Kadirgamer, “he revealed how he and the Tamil supporters of the left movement who had worked hard at the 1975 bye-elections had been severely let down. The United Front had given him the assurance that 48 hours before the poll the Kankesanturai electorate would be flooded with pamphlets promising a substantial degree of autonomy to the North and East, that would gone beyond the abrogated Bandranaike-Chelvanayakam Pact of 1957. At the last minute the SLFP high command went back on this promise and the CP leadership succumbed to this betrayal”.

Genealogy of Concept and Genesis of 13th Amendment -II

September 17, 2020

Prior to the 1977 general election, J. R. Jayewardene promised to summon an All Party Conference to take all possible steps to remedy the grievances of the Tamil- speaking people. However, what followed the election victory of the UNP, in 1977, was a series of anti-Tamil riots. On 12 August 1977, in less than a month of the new government assumed office anti-Tamil riots started. It was reported that over 300 Tamil people were killed during the riots. The political implications of the Anti-Tamil riots in Sri Lanka reverberated on the other side of the Palk Strait. On 24th August 1977, the Tamil Nadu Assembly adopted a resolution urging the Government of India to “depute a representative of the status of a Cabinet Minister to Sri Lanka to find out the true status of the affairs and have direct talks with that government by way of assuring the feelings of the Tamils there”. At this time, however, the Prime Minister Moraji Desai dismissed the Tamil Nadu request and stated that the Government of India did not propose to send a Cabinet Minister to Sri Lanka since the Indian High Commissioner in Colombo had been doing every thing possible and the two governments were also in close touch with each other.

Despite the election pledge to summon an All Party Conference to take all possible steps to remedy the grievances of the Tamil-Speaking people, J.R. Jayewardene first offered the District Development Councils (DDCs). It is important to note that, in spite of strong pressure on the part of the militant youth groups not to contest, the TULF participated in the DDCs. The DDC experiment of the TULF proved to be disastrous. On the one hand it faced the antipathy of the youth who advocated direct-armed struggle. On the other, the Central government was not prepared to tolerate even decentralization of administration. “The institution of District Minister ensured that all decisions of the Council will be subjected to strict control by the representative of the central government”.

There were anti-Tamil riots again in 1981. Tamil Nadu politics was rocked again due to the ethnic riots in Sri Lanka. The leaders of the 20 political parties urged the Prime Minister Indira Ghandi to grant the Tamil youths seeking refuge in Tamil Nadu political asylum. This time the Indian official reaction was clearly different. For the first time, the Indian Government made representation to the Government of Sri Lanka regarding the violence against Tamils during the ethnic riots. In the period 1977-1983, the power and influence of the Tamil militant groups increased very rapidly. This is reflected in the Jaffna Municipal elections held in 19 May 1983. The LTTE was able to implement a boycott of the elections successfully and the turn-out of the Jaffna polls was only 14.5 percent. The 1983 July riots created a very strong protest in Tamil Nadu in the form of bandhs and demonstrations. The delegation from Tamil Nadu made representation to Prime Minister Indira Ghandi on this situation and she assured the delegation that New Delhi “was dealing with the Tamil question in Sri Lanka as a national issue affecting the whole country, not merely as a problem concerning Tamil Nadu alone”. Just two days after the outbreak of riots, Prime Minister Indira Ghandi contacted President Jayewardene by telephone to discuss the Sri Lankan situation. As K.M.de Silva reveals, ‘The upshot of that fateful conversation was that Jayewardene found it necessary to invite Mrs. Ghandi to send an official representative to observe the situation in the island on the spot and report back to her”. When V.P Narasinghe Rao, a senior Cabinet Minister, visited Sri Lanka as a special envoy of the Indian Prime Minister on 29 July, parts of Colombo was still burning.

After July 1983, India entered swiftly as a self-appointed mediator and Indira Ghandi selected G. Parathasarathy as the mediator. The declared mission of G. Parathasarathy was to create an atmosphere for a negotiated settlement and act as intermediary between the Government and the Tamil political parties to formulate new proposals for devolution. As Godfrey Gunatilleke traced, at this point there were four inter-related but separate components to the negotiating process. “(1) the negotiation between the government of India and the government of Sri Lanka, (2) the talks between the Indian government and the Tamil Parties (3) the consultation in the conferences of the Sri Lankan political parties, and (4) the negotiation between the Tamil parties and the Sri Lankan government”. The first layer negotiations continued from August to November and the both parties able to agree on an acceptable plan, based on regional councils. This plan was became known as annexure ‘C’

In January, President Jayewardene convened the all-Party conference (APC) to discuss the proposals that came out from the first layer of negotiations. The polarization was very clear. The TULF and Tamil parties firmly stick to ‘regional councils and no less’ while the Sinhala political parties to ‘district councils no more’. Jayewardene’s vacillation and naivety was demonstrated very clearly at the APC and he did not come forward to defend the Annexure – C that he jointly fathered. Lacking his strong support, Annexure “C’ was made impotent”. The deadlock over the two positions made Jayewardene to suspend the APC on 30 September 1984.

Meantime, the Government prepared the 10th Amendment Proposals and Draft District and Regional Council Billi. On 21 December the Jayewardene Government decided to terminate the APC and stated that he would meet the TULF in early January to discuss the proposals. At first, the TULF agreed to go alone with the 10th Amendment. Later, Amirthalingam stated that the proposals were totally unacceptable to the Tamils and left Sri Lanka. Thereafter, President Jayewardene announced that he was withdrawing the proposals.

In June 1985, President Jayewardene and Minister Athulathmudali met Prime Minister Rajiv Ghandi for direct discussions the on ethnic issue and reached “an agreement on using India’s good office in finding a solution to the ethnic problem”. This paved the way for the direct dialogue between the Tamil armed groups and the Sri Lankan Government in Thimpu in August 1985. At the discussions at Thimpu, the six Tamil groups enunciated ‘four principles’ from which they would not waver. The Sri Lankan delegation also presented an outline of structure for devolution of power and affirmed that beyond which they could not proceed. In this context, what has happened in Thimpu is well known.

In June 1986 President Jayewardene decided to embark on a new political initiative and convened a round table conference of all political parties (PPC). He declared the Provincial Councils as the basis for devolution of power at the PPC. Both the SLFP did not attend the PPC but Mrs. Bandaranaike agreed to consult President Jayewardene separately. The negotiations between GOSL and the TULF as well as discussions within the PPC continued for over three months. The basic draft of the Provincial Councils emerged out of these deliberations. As K.M.de Silva ,who had access to the official documents, traced “consisting of 50 pages in all, they included draft constitutional amendments, a draft Provincial Council Bill, schedules setting out ‘Reserved, Concurrent and Provincial Lists’, as well as detailed memoranda dealing with law and order, land and land settlement and education”. President Jayewardene and Prime Minister met at the Bangalore Summit of SAARC in November 1986 and further discussed the proposals known as ‘19 December Proposals’. It was really an incorporation of the agreements reached at the Bangalore summit into the Draft Provincial Council Bill of the PPC. The main issue remained unsettled was the merger of the Northern and the Eastern Provinces. There were many proposals in this regard but no agreement was reached.

The situation began to change rapidly from January 1987. Prabakaran who was operating in Tamil Nadu till now, slipped into Jaffna, in January anticipating the Indian pressure. The LTTE leader’s arrival marked a new phase in the armed action. In response to the increased pace of the LTTE armed activities, the Sri Lankan government imposed economic and communication blockade on the Jaffna peninsula. In March 1987, Rajiv Ghandi sent his personal envoy, Dinesh Singh to Colombo to convey India’s grave concern about the situation in Jaffna. In response to the Indian concern, Colombo declared an unilateral ceasefire for 10 days in April. However, after a bomb explosion in Colombo, which claimed over 200 deaths, the government decided to commence military offence in the North once again and Vadamarachchi offensive came in this context.

It is true that the Indian démarche was the immediate factor that cleared the way for the Provincial Councils in 1987. Even a cursory look at the political genealogy of the concept of Provincial Councils would clearly endorse that it was not simply a parasitic organ. It has been in the political discourse since independence in various forms. The vacillation and failure to take correct stand at the correct time on the part of Sri Lankan state had given India an opportunity to intervene in Sri Lanka’s internal affairs. By utilising Sri Lanka’s vacillation, India applied coercive diplomacy and violated Sri Lankan air space, entered into the Sri Lanka’s decision making orbit and attained its geo-strategic objectives, which was manifested in the Annexure to the Indo-Sri Lanka Peace accord.

It must be noted that at the outset the Provincial Councils have to carry a certificate of illegitimate birth due to the Indian intervention. However, the Indian role was just a midwifery role. The politically and ideologically weak ruling class of Sri Lanka failed to give it a natural birth. Further, the Provincial Councils had to toddle at the beginning on an unceremonious note as both the LTTE in the North and the JVP in the South violently denounced the Provincial Councils. The SLFP boycotted the Provincial Council elections at the beginning. In addition, there were many inherent structural weaknesses. As President J.R. Jayewardene was not yet deviated from the old centralized mind-set, the devolution package under the 13th Amendment was a half-baked product. The other hand took what was offered by one hand to the Provincial Councils. With all these shortcomings, the 13th Amendment was an important step in the evolution of the political discourse of the country. It alleviated the earlier fears that devolution promotes separation. In addition to the structural weaknesses of the 13th Amendment, non-implementation of some provisions and failure of the central government institutions to devolve functions to provincial units hampered the Provincial Council System. The dominant of centralized political culture of the country has negated the true potentials of the Provincial Council system as another tier of democratic governance. Some of the political criticisms levelled against the provincial council are equally applicable to the central government too. All these shortcomings are not reasons for the abolition of the Provincial Council system. Such a move would create more complicated political problems and their repercussions would be grave. What is necessary at this point is to go forward and address the shortcoming of Provincial Councils to make them true units of devolution of power to the people in the regions. (Concluded)

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