A Bird in the Hand is Worth Two in the Bush!
13A has become a sticking point among Tamil nationalist parties after a lapse of 35 years. Amendment 13A is the byproduct of the Indo-Ceylon Agreement signed between Prime Minister Rajiv Gandhi and J.R Jayewardene. President of Sri Lanka. It was signed on 29th July 1987 in Colombo. On 14 November 1987. the Parliament of Sri Lanka passed the 13th Amendment to the 1978 Constitution and the Provincial Councils Act No 42 of 1987of Sri Lanka by a 2/3 majority.
The Indo-Ceylon Agreement was fiercely opposed by 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.
The opposition by ultra-Sinhala nationalists was based on the ground that Indo – Ceylon Agreement was signed under duress by using military force. That it infringed the unitary character of the constitution by devolving power to the periphery.
Fortunately, the Supreme Court of Sri Lanka after some haggling ruled that 13A does not infringe the unitary character of the constitution. It was a majority decision, with 5 judges in favour of the Amendment and 4 judges against it.
This was at a time when Jayewardene e was facing a military-style insurgency in the south led by the JVP. JR as an astute and shrewd politician rightly thought he cannot fight both the JVP and LTTE at the same time.
The Provincial Council elections were held for 7 Provincial Councils on 02 June 1988. Elections to the merged Northeast was held on 19 November 1988. It was dismissed on 31 December 1990 and dissolved on 31 December 2006.
In 2007 the two provinces – North and East- were de-merged following a court case filed by JVP in 2006. The Supreme Court in its verdict did not say the merger of the two provinces were illegal per se. All it said was that the merger should be effected by a law passed by the parliament and not through gazette notifications.
Elections were not held to the Eastern Provincial Council until 2008 and not until 2013 to the Northern Provincial Council. So the Tamils did not benefit from the Provincial Council system that was meant to solve the demand for devolution of power by the Tamils.
Now Gajendrakumar Ponnambalam, leader of both the ACTC and TNPF is denouncing the 13th amendment enacted within a unitary state—and those Tamil parties that stand for its implementation. This must be sweet music to those ultra-Sinhala Buddhist nationalist forces who also wants the abolition of 13A and the Provincial Council system under it.
It is historically true that the TULF which was engaged in talks with the Indian Government did not accept 13A. At the same time, it had serious reservations over the two draft bills before parliament.
In a lengthy letter signed by TULF A.Amirthaligam, General Secretary, M.Sivasithamparam, President and R. Sampanthan, Vice President and addressed to Rajiv Gandhi, Prime Minister of India on 28 October 1987 ( https://sangam.org/letter-pm-rajiv-gandhi-tulf-13th-amendment/).
The 3 leaders of the TULF did not reject 13A outright but expressed their disappointment stating the TULF regrets it cannot recommend the contents of these Bills (13A and Provincial Council Bills) to the Tamil people as being satisfactory, just and durable.
The TULF leaders further 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.
The letter concluded by stating “In view of the above we earnestly request you to ask President Jayewardene not to proceed with the two Bills in Parliament in the present form till the matters referred to herein are discussed and resolved to the satisfaction of the Tamil people.
We request that we be granted an early appointment to discuss these matters more fully with you.”
In retrospect, it would seem that a few of TULF concerns were misplaced. Though executive power was vested with the Governor, Provincial administration was in the hands of the Board of Ministers, including the Chief Minister. They had almost unfettered freedom to administer the province with hardly any interference by the Governor. In fact, the Governor 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 the Ministers. While 13A devolves power within a unitary constitution, we must look at the positive aspects of the Accord.
The irony is while Gajendrakumar is denouncing the 13A claiming there is nothing in it, he says his party will contest the election for provincial councils when it is held. Hitherto, the ACTC has boycotted the provincial elections claiming it is a creation within a unitary constitution. If we accept his argument now, then he was wrong in boycotting the elections in the past. Taking into account his idiosyncrasies in the past, there is no guarantee he will not perform another summersault in the future.
A letter dated 29, December 2022 and addressed to Prime Minister Modi by a group of 5 Tamil parties stated “In this situation, we appeal to Your Excellency to urge the Government of Sri Lanka to keep its promises to 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 tortured march towards achieving self-government while demanding that Tamil People are entitled to the right to self-determination in keeping with United Nations International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, both of which Sri Lanka has accepted and acceded to Power-sharing arrangements must continue to be established as they existed earlier in a unit of a merged Northern and Eastern Provinces.
This is a long process given the fact that ultra Sinhala – Buddhist nationalist forces are vehemently opposed to it. Sinhalese people have been told that federalism means physical separation from the south.
It is insane to release the bird in the hand (13A) in the hope of catching two birds (federal) in the bush.